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FORMS, 1907, 1909. 
NINTH EDITION. Demy S>o. 1909. Price lOt. 



Demy 8vo. J904. Price 6s. 

The Law of Torts : 
















Author of 
" Primtplea o/ Conlrart," "A Di^nt i,/ the Imw of Partmrthif," He. 




119 & 120, CHANCERY LANE. 



l^ab) jpnbliehcts. 











•oinniifa a justicb op i'ik comhon Biirca, 







In this edition some passages in the chapter on 
"Defamation" have been re-written (see at pp. 268 
—270), in order to take account of a recent line 
of cases in the Court of Ap ml, those which 
deal with the now familiar afenco that the 
facts were true and the comment fa'r. The 
decisions in the House of Lords on the cxte ■♦ to 
which a licensor is bound to protect a lid ee 
from non-apparent dangers, or a licensee of 
tender years fiom danger which would have 
been apparent to an adult, are noticed in more 
than one place, and an attempt is made to explain 
the just bounds of their application (see at 
pp. 471, 536, 038). 

A very learned and interesting American work, 
Prof. John Henry Wigmore's " Select Cases on 
the Law of Torts," came to hand only when 


the greater part of the sheets were already 
through the press. I have, however, been able 
to make a few references to it. 

Cases are noted down to those reported in 
April, 1912. 

The Index has again been revised by Mr. 
Edward Potton. 

F. P. 

liUTOOtN's Ins, 
Emter, 1912. 

f ix ) 


Boor I. 

The Ninnu! of Toet ik QraEEii,. 

Of tort in general "™ 

Turt distinguUhed from breach of amtnct i 

History of EngliBh elansilicatlon ''.''" , 

PersoniU wrongs 

Wrongs to property ..!..!." I 

Wrongs aflecting person and properly I 

WiUnl wrong. ....V...... 

Wrongs unconnected witli moral blanie...... ...... 9 

Wrongs of imprudence and omission ... . 

Relation of the law of Torts to moral duties". '.! I 

Early forms of action 

Rationalized version of law of trespass .!...'.".'.'.' f^ 

Analogies of Roman law 

Jlolmnud Culpa .!!,.!.]! '° 

liihliitj quati tx delicto 

Summary of reautta .',*,',',' *^ 

Pbinciples of Liabiuty. 

Want of generality in early hiw 

General duly not to do harm in modenl k w .,., 

Authorities ^^ 

When malice material '.'.'.'.'. .^' 

Breach of speoiac legal duty ,' ' * f * 

Duty of respecting property 

Duties of diligence ^* 

Assumption of skill ,'!] .^"." '"^^ 

Exception of action under neeegsittr 



LinbiUty in relation to const-quencos of aci or default "^^ 

Meftflure of dama^K .^2 

" Immediate cause " g„ 

Liability for consequences of wilful act _^^ 

*' Natural coruiequencea" 2^. 

'•Natural and probable " conftequence ^^ 

Liability for consequencen of trespass ^^^ 

Consequences too remote ^^ 

Liability for negligence * • * • * * ' * ' ** * 

Contrasted cases of non-liabUity and lUMlity: Cox *. Burbidgc . ^^ 

Lee I-. Biley * " ^g 

MetropoUtan RaU. Co. •■. Jackson ■•••.""" U,'lk '' 

Non-liabUity for consequences of unusnal state of thing. : Blyth v. ^^ 

Birmingham Waterworks Co ^^ 

Whrthlr J^e rule holds' for'coMeqnence. of wilfnl wrong : Clark ^^ 

V. Chamberw ., 

Cmseqnences natural in kind th,.agh not in dreumstance •>' 

Damages for "nervous or mental shock" " 



1. liiuilnlwiu of Prrmiuil CaiKu-ilil. 
Personal status immaterial in law of tort :bnt capacity material .. '^ 
Exceptions : Convicts and aliens , 

Infants ;,9 

Harried women ; the common law '^^ 

Married Women's Property Act, 1682 ■ 

Common law liability of infants and married women ■ • • ^^ 

Ss^StyorpublicMiMfoVmanagement of works under their ^^ 

control ' 

2. J^ffcliifa I'mty'n Driflh. 


Aclio peti'onalintttirUur rum pcmoiia 

Qh of the extension of the rule in Osborn r. liillctt •••:■;•••;■••• ''" 

ExceptionH: Statutes of Edw. HI. giving executors right of suit ^_ 

for trespasses ^. 

Of Will. IV. as to injuries to property 1* \* " 

No right of action for damage to personal estate consequential on ^^ 

jwreonal injury ^^ 

Lord CampbeU's Act: rights created by it ■ • • ^^ 

Construction " ' ' 



Interert of Murvivors distinct 7., 

Statutory cause of ncUon ig in eubatituUon, not cumiUativV ...... '. [ 72 

Soottiah and American laws " * -.. 

Right to foUow property wrongfully taken or eonvJrt^* * '. '. ' * * .* .'." ' 7^ 
Rule limited to recovery of «pecifi,' property or ita value : Phillips 

'•. Homfray 

3. liability for the TorU 0/ .l,,eu(» and Unvauh. 

Command of principal does not excuse agent's WK>ng - -, 
Caae. of apeoial duty, absolute or in nature of warranty, ' distin*. 


Modes of liability for wrongful nets of other* ...!.'!,*."!!".'.**,' .' .' * 77 

Command and ratification 7- 

Master and servant -j, 

Reason of master's liability -t 

Who is a servant ' ] „' 

Specific assumption of control a„ 

Temporary transfer of 8ervi(!e g^ 

" Power of controlling the work " explained .'.*..".!" 1 !!]! .* 86 

Public offices under tho Crown \ o - 

What is in course of employment !!. 1 .*.".'.'." " 86 

(a) Execution of specific orders ] gy 

(b) Negligence in conduct of master's business " ] 87 

Departure or deviation from master's business ,' 88 

(c) Excess or mistake in execution of authority * ] 9[ 

Interference with pjissengers by guards, &c 91 

Arrest of supposed offendei-s (yt 

Act wholly outside authority : master not liable \ 93 

(d) Wilful trespasses, &c., for master's purposes '. flD 

Fraud of agent or servant yg 

LiabiUty of quasi -corporate association for wrongs of 

servants g^ 

Liability of firm for fraud of a partner c - 

Injuries to servants by fault of fellow -servants *.!]*.*!!.'.'.'.!! \m 

Common law rule of master's immunity ' iqjj 

Reason given in the later cases ''.*.'.'.'.' im 

Servants need not be about same kind of work " ' 10 » 

There must be 11 general common object ]oi 

Relative rank of servants immaterial * j„. 

Servants of sub-contractor ,„. 

Work done under compulsion of law " .«,. 

Volunteer assistant on same footing as servant 1 Oli 

Exception where master interferes in person jo; 

Employers' Liability Act, 1880 *.'.'."*.*.'."*."! IQ- 

Resulling complication of the law !!.'"'„ 103 

Workmen's Compensation Aet-i, 1S97 and iUOG 1,,., 



Oesbiul ExcKPnOHB. 

Co-dition. deluding ItaWUty «»' «ct ;.™« /«*« -ro-Kl-^ ■ • • • ' ■ ; ' '//^ 
Oeneral and particular eioeptioM 

I. Aeli of Stair. 


Actsoiatate ■_ '''^ lit 

Genera', ground of exemption jiq 

Local «^aona again.! viceroy or governor ;;;'.'..'.'.".'.';!!. 116 

Po 3r to exclude aliens ***" 117 

Acts of foreign po«er» .....'. 1 " 


2. Judicial acta. 

Judicialacta 120 

Liability ky statute in special cases jj. 

Judicial acta of persons not judges 

;l. J-^ieeiiticc actt. 


Executive acts 123 

Acts of naval and military officers ••••■ jj, 

Of other public authorities ...124 

Indian Act XVIII. of 1850 •■•|-;- 125 

Executive aoU in time of war 

4. Quan-jitiieiat acti. 

Acts of quasi-judicial discretion !.........!!" !« 

Rules to be observed 128 

Absolute discretionary powers ..••■•••• •••■•; 'll- • " "■■"■.'... 128 

Whether duty judicial or miuisteml : A.hl-y t. White 

6. Parntal and Qimi-panntal Aulhoyity. 

Authority of parents , ,,...'.... 1" 

01 custodians of lunatics 

6. Aulhoritin of Xtcimlu. 


Of the master of a ship 

7. Damage imidmt to authoriud actt. 

Damage incidently resulting from lawful act • » ^^ 

Damage from execution of uuthnrized works ^^^ 

^-rrt=:^"^-^-«-»----" •■ •••• '" 


8. JmviUble Afeidtnt. p^^ 

In»7it«He Moident peaulting from lawful Ml ,39 

Co principle auch act oicluder, liability ...!!.... 139 

Apparent conflict of aathoritiea 141 

American deciaion. : TheNitro-Glycerine Ca»'(Sup. Ct. US 1 142 

Brown p. Kendall (Ma«i.) "" 143 

Eogli-h authorities : Cases of trespass and diooting ..!.!!!!! 144 

Cases where exception allowed ,.„ 

9. Exercitg of foiitmon Sii/hti. 

Imuuuity in eiercise of common rights ,51 

Digging wells, &c., in a man'a own land 1 59 

Chasemore r. Riohaida 

Other applications of aame principle [[[[ . .g 

Whether malice material in these cases .'!!!]..!!" 160 

Bomau doctrine of " aaimos vioino nocendi " iji 

No exclusive right to names .... 


10. Leave and Licettee; Volenfuumjit iniuria. 

Consent or acceptance of risk 

Bxpreaa licence 

l.iniitH of consent 

Licence obtained by fraud 

Extended meaning of mknti «mjil huuria to aUnrnptVon of risk " " 167 

Rektion of these cases to inevitable accident , gg 

Knowledge of risk opposed to duty of warning 109 

Oases between employers and workmen : Smith p. Baker !!!!!!!! 1:0 

Distinction where no negligence at all , -.. 

DistincUon from cases where negligence ia ground oit action! '.'.'..'..'. 173 

1 1 . It'oika of Xt'ceaaittf 1-4 

12. Tritalt Defetite. 


Killing of aoimals in defence of property '.\\ ,-- 

Aa.ertion of rights distinguished from self-defence ,79 

Injury to third persons in self-defence '...'... j-g 

13. riaintifa H'ro«g-d<xr. 

Harm suffered by a wrong-doer 

Sunday trading : former conflict of opinion in V.S. [so 

Cause of action conuected with unhiwful agreement .....'. '. '.'.'.'..',', 153 




Of Rembdisb k>^ ToaTB. 


Divemty of mnedieii •"■" igS 

SeU-bdp 186 

Jodicitl Miiiedie» : dmi«gB« ••••• jgj 

Nomimil <« .......■••• • ■ • • • - ' '/V^^^^ "right in infringed .199 

Nominal damage. po»iM. only when. n.l^nte g ^^^ 

Ca«. where the damage i. the g"""!'"""'"' m 

P^uliarity of Uw of defamation ;■■.'.'.■.■.■.'.'. 1" 

Ordinary damagea 19a 

Exemplary damage. ....•■■ ■■•_■■,■,■" totorto'in'thi. respect. . . . 196 
Analogy of breach of promw of mamage ^^^ 

Mitigation of damages ',"'l-'i 19» 

Concurrent bnt «ver.ble cu«^, of aohon •■••••••■■ ,97 

Injunction. 19* 

On what principle granted ... ... ■ — ■„•-• j^a equity to give 

Former concurrent junidiction ol uommo ^^ 

compcnaition for fraud • • ; ' ' ' 200 

Special .tatutory remcdie., when ••■•■■•■■ j„2 

Joint wrong-doer. '.",""■,' '^"^ 

Act. not wrongful by Eugli-l. law •••• jOH 

Act. justified by local law .209 

Act wrongful by both law. •■••■•• .^10 

Phillip. «• Eyre 213 

Limitation of action. .....■■•■••■■•••• • ju 

8u.p.a»ionofthe.tatutebydnubiUt.e ^^^ 

From wLat lime action run. • ' ■ ' ' 215 

Statutory penaltie. V v,U. '*r '^'^ 

Special protection of iu.tice.. cou.table., 4c ^^^ 

Exception of concealed fraud jlj 

Conclusion of General Part 


Book II. 



I. Auanlt ana BatUif/. p^g^ 
What i» a battery 

What an asaault q! 

Eioiuable acta. ... '^ 

Self-defence .! "1 .!!.!!!]]..!"!!] ] ?^' 

Menaoe diatinguirthed from aeiiault ..,.,.. 2'li 

Sommary prweedings when a bar to civil action .!..!!!!"..*.[."] J24 

II. Fiilne Iirpy'titOHmeiit. 

What is falne impriwmmeiit .>.ie 

JuetifloatioD of arrest and imprisonment 226 

Who is answerable „^_ 

Beasonable and probable cause .'..'.'!.".] 2"» 

III. Iiijurini in Fainify Relations. 

Trotection in personal relations .,3j 

Historical accidents of the common la w herein * 232 

TrespaHS for taking away wife, &c., and per quod .ertHimi miilit]'. '. '. 033 

' Criminal conversation '* .,» . 

Enticing away servants .,„ . 

Actions for seduction in modem practice ][[[ 235 

Damages 7./.........,., 23- 

Services of young child !'."!!! 238 

Capricious operation of the law . , [[[ 238 

Constructive service in early cases .".'.!!.',' 239 

Intimidation of servants and tenants 1 !.'.*.*.. [ 24ft 



Civil and criminal jurisdiction .,,.. 

Sknder and Ubel •.."...!..""].'.'.'.'.*/. 245 

I. Slander. 

When slander is actionable 04 5 

Meaningof'^jrtmo/arifl libellous" .'.'.*.*.".'.'*.!]!.*.'*.!]] "" 246 

Special damage .!!!,*.'" qar 

BepetiUon of spoken worda 24T 




Special damage inToWoH dcflnite temporal Iom 247 

Imputation of oriminal uffcuoe 248 

Charge! of mere immorality not actiooable 249 

Slaoder of Women Act 2fiO 

Imputatioo of cuntagicoi diaeau 250 

Evil-ttpeakiug of a man in the way of hi« busineas 2fil 

Word* indirectly oauiung damage Lo a man in his biuinesa 2A3 

2. Defamation in General. 

Defamation 254 

** Implied Malice " 254 

Whiit is publication 255 

Vii-ariouH publication 257 

CunBtructioD of word:* : InHUfudo 258 

Libolloua teudency, noi intention, the test : proof of tendency 269 

Bepetition and reports may be libellous 260 

3. Exeeptiont. 

Exoeptioni : fair comment 262 

What is open tit comment, matter of law 26.'i 

Whether comment is fair, matter of foot 266 

Justification on ground of truth 267 

Must be yubstautially complete 268 

Uixcd defence of justificntion and fair comment 268 

Defendant's belief immaterial 271 

Parliamentury and judicial immunity 271 

Other pertHitis in judicial prucccdingx 272 

Rcfn rts of officers, &c 273 

Qualified immuuity of '* privileged I'ummunioations " 274 

Coiiditious of the privilege 27r> 

" Exprcse malice " 275 

What are privilnged occanions 276 

Uoral or t<ocial duty 277 

Self- protection 278 

Information fur public good 27S 

Fair reports 279 

Poriiumeiitary papers 279 

Furliameiitary debates and judicial proceedings 280 

VohintcercJ reports 282 

£xccss of pi ivilev^ 283 

Honest belief ia not necessarily reasonable belief 284 

Fuwtr of jury iu assessing dumuges 2H5 

Statutory deteuces 28d 

LimitM of interrogati iries in action for libel 286 

Bad reputation of plaintiff 286 

Injunctions 286 


W«>«, o> P.iro, au, run, i,D OPP.UBO,. 

I. IJtrrit, 

X«ture cf the wrong '"'" 

Coi,c, j„rMic,;„„ .It'^^^ \^, '^^^ ;• ;• ' • W 

D, oUh. ,„bj«. : „„p,,..ti„„ ,i.hT„^;; .'" 

Qaestuna of fmuduleol intent ''" 

FniuJ of agents _' ' 289 

Oiueral condition, of right of Mtion ^"' 

(«) Fal»h<wd in fact '.'.'.'.'.'.',', "" 

Hinreprcnntatiouii of law "' 

FalKhood hj garbled stateKenti J°' 

(b) Knowledge or belief of defendant " 

Repre«nt.ti„n. .„, ,e<j„e„Uy di^,er«i'to'i; .int'nie' " ' 29' 
Kecklesi) aitaertions . . "uirm. . . jon 

in,' T'" '""' ''"'^^' ^^Vinfo™;«;.' ::;::; 3°! 

(c) Intention of the .tatemenV !! ] "" 

Heprei»ntation,toda«: PolhillV.'wJto ,'!!! 

Denton v. O. N. R. Co. 

Peek r. Gumey '"* 

(d) Reliance on the repreMnlation ""* 

"inq-i.^'."r '"■"''»'i'''''"fc°-' "'"^VpeninV ™° 

Perfunctory inquiry will not do !!] J"' 

Ambiguous .tatementu 

(e) Lord Tentcrden'» Act .'. ''" 

Equity and law under Judicature' Act.' ! f !? 

Mureprosentntion by agent. 

Liability of corporation, herein " ^'^ 

Hea«on of an apparently hard Uw ''* 


II. Statidey of Title. 

Slander of title 

Recent extension, of the prinoipte '" 

Trade mark, and trade name. "' 

Unfair competition ^^^ 


UI. ifii/iriM. Fnueutian njid Mim «f Ftoau. 

Maliciou. prosecution 

Malicious civil proooedings'.'.' .'.'." '.".'.'." ^-' 

p. — X ^"^^ 


XTiii T*"!^ •**■ CO*'™'"* 

IV. CMfirMy; rnnrrmnl nf Wnm,: ™ 

Coi»plnu!T«ot.naa«ia.t.t«t.<ltabaitT ^^^ 

Action, for procnring brMoh of contTMt ''.'.;".'.'.'. 3*0 

BemolMMm of d«iil»ge • ' ' "«..V Ml •.•...•• ^^ 

Sngg«t«l "ilntlon „4 

InlmfOToo. "Ith fpMwhlM j^^ 

^JlftTwYti,- ;;oup.t-i- : n^^^^'^^-'-- ^;. 

Trndn Difl)utM Act, 1006 


Whoso, to Ponmiox akh Pmpmty. 

I. n«lm rrjaMnn Properl) frwrixlly. 

Abwlnte doty to rcpMt other.' propottx '.[.'..'. MH 

Titl., in.tifl.Tation, o«cum ^^^ ^^^ 

Title dramJiJiil on contract V/.li 350 

E«cq.tion«l protMtion of certain doling. ,n good f.lth ... . . . .... ■ • ^^^ 

Common law rigbt. and roL-ediM ***' ^^^ 

PowMMion and detwition '.*..!.'.*!. 854 

TrwpaM and conversion "* .jg.^ 

AlternatiTC remediee 

II. r«.,«". 3jg 

What .ball bo Mid a tre.)«« .,j, 

l)mert concerning baUoon. and aimbip. • • • • • .^^ 

Xre.paM to good. * 

III. Injtiriri li) Ktinmn. 
Wrong, to an owner not in poMeuion 

IV. »'«>«. 


Wbat i. warte • • • • • • Ml tenant, for We '.'.'.'..... 365 

Landlord and tenant 

V. Ctititcraion, 


Belation of trover to trMpam ^. 

What amounts to converMon ,^^^ 

Act. not amounting to conversion ^.^ 

Dealinn. under authority of apparent owner ',','.'.',', 3n 

Act. of MrvaotH * 3-^ 

Redelivery by bailee. 37S 

Abuse of limited inteie.t ,j_^ 

Convereion by estoppel ••■■ 


VI. I,J„i„ !,,»„„ Tm.Hl. ,, fcnm,,. ,„, 

Trsqiuatii betWMn taoutj In ciimmoii 

VII. Ei^mlid I'rtlKlicm of Pamuiou. 
Right, of */«<.p<».™i„,,^,„„„^ 

Ili«hUofowiierM,lltl«dt„re.uinep„««rio„ ™! 

Sigbtoof dniratiTgp<w>nuo„.,,_ '" 

Pci««.lond,rived through tiw^il,.'," ■■■■■' ■'■■]■■■'•■ ^^ 

VIII. ll'rmgM itt Kammtnlt, J^e. 
VioUtioD of inoorpotval rjghtit 

I^- "'•'■'"'•••/ Jii'liftaliea ami £itim. 

Revocation of llcenc-e ' '"** 

Executed Ucencot \\\\ '"**' 

KxpmeioQ of lioeneor'H will * ^^^ 

Dintinotion from gmnt ., itii^Ki.™ i!"" 

JuitMcxtiuu by law "* 

Re-entij: herein of forcible entry .]!...""[ | ™* 

Fredi re-entrjr on treqiuKr '"' 

Recaption of gofida \\\\ ^^* 

ftoccM of law : breaking door. ""«« ■;■ <»" 

Damage feaunt ■*"* 

Entry of distrainor **** 

Trespawie. jurtiBod by ncoeMity *"' 

Fux-hnnti&g not pririleged ^"^ 

TrmpaM nh iiiilm <"" 


X. Ktmfillti. 

Taking or retaking good. 

Co«t« where damage, nominal ] """ 

Injunction. ^Ofi 

Effect of change, in procedure .....!..] *" 




Nuisance, public or private 

Wvate rixht of actiou for pubUc'nuiMnci. *'■ 

Special damage must be shown *'^ 

Private nuisance, what ."."*.' ^'* 

Kind, of nuimnce atfetting— *'® 

I. Ownership 

'1. iura in n- aliena *'" 

3. Convenience and enjoyment *'* 

42 *" 




Xcune ol niliiuea ...410 

Inlnry to hMllh nerf not »« nhowii /"".'".ll 4J0 

Imwont or i.«»-«ty ckmrtr o« o*™-!" "__! Vii 

venimce of pUoe, oo Mwer *.*,*.',".'..'..... *2;* 

lIo4c« of HmojmM '■."'l' ... «.V 

Ii.iuryc.««wilholhe« ••••■•-■•• ., 

Inju7, c.i««l br i.a.p«.to« •«• »' •i'««""' '"""".•.•.•.•.■.■.■.■.•.■.■. . 4iO 

Ob«tnlrtlon of Ughti ' ,.j; 

Nrtareof the right to light .....■■■ ."'U^i ... 428 

Any diminution »Ming .uhrt.ntUl d.™g« i- • »™'* ^.^„ 

8nvpo«d ml. of f«rtT-«v. degree ••■••••• ^^ 

Enhirgement or «lt««tic' of Ughte ••• ^j^ 

■'NaiMnoe" to market ol irry ...].".!... 431 

R*niedle<» for nuiiADce W.'.W 4^'-^ 

Abatement ''_'"' jas 

Notice to wioog-doer ',.',','. 434 

NulMoceM of omiaaion * ' ^ " 43;, 

Old writ! 43b 

Damage* *"' 437 

InJBUctiona • "' 441 

Dlffloolty or expenae of abatement no anawer ^^^ 

Partie. entitled to me for nuliance '.,".!..!. 443 

Partlea liable * 



I. Tht Ceno-aJ Canap''""' 
Omi.«onconln»t.d with acUon a. gronnd of liability ....■•• <«» 

General duty of c»ntion in act» 448 

0»erlapplng of contract and tort 449 

Deanition of negligence ' " " 4,^1 

Standard of duty ia eitemal ..!.."...... *'>■' 

Diligence includes competence '* ' ,^^ 

Degrees of negligence 

II. EtUentt cf Xr'/lil"'''- 

, , 454 

Negligence a queaUon of mixed fact and "*••■•••;;••••■; 455 

Burden of proof j'U *■'•'' 

Where there i. a contract or under' .king ^,,| 

Thing. «ithindcfend«.f. control >.-. .f» '«,'•>'"■) ,,„ 

Common cour»of.«"r.iudW«Uy ""';■**•:- ,€0 



MwropoUUn R. Co. .. J,ck„„ . . , . >'»ok 

Ciiww of level orowjngi <"' 

•' Imiuilon to allifhl " <«1 

No piwln groenU rule -^^ * »■ w. R. Co ,„ 


Tu9 r. W.nn.„ " " P'"«!"'«'. ».u«.. „„ „ „,edy <., 

B^ej 1-. L. 4: K. W. R.' c„ 173 

••"„r"de<-W,e",;„',;,V.' "* 

Butterlicld.. ronwter it* 

Combined neftligeuco ... <;9 

The ..pWed dootrite of '''■ ■id^tM;.',;,;.' ■.." 1«1 

A»ident.toehj,dm,i„cu,u.dy„firf„U "'^ 

ChUdren. 4c. ui ittendcd ... <*S 

Child t, Hearn "] 4S6 

Adiniraltjrnleofdividiiiyi^V <*» 

^^f^r-'^^j:::c:i^':z:'"''''-- -» 

Doctrine of New York Court. "2 

SepMtion of law .„d f«,t in Unit'ei' Sui™ .' ] "< 



DnriKs OF IssrriaHa Sarerv. 

Bylands r. Flotiher ■"'■ 

Exr«ptioa of, let of Ood '!!.'.".'.' "8 

Act of stranger, 4c, . . ■''*'* 

Authorized works 606;^.';;B„;;d '"■ 

other >;a«s of iu,uranoe liability ^^ 

' S09 



Duty of keeping in cattle ^' gjj 

D-ingerouB or TiciouB animal* V.^'"-- '*^^ 

Fire, flreanna, &o '"_' 6i;j 

I>aty of keeping in firt' 514 

Oarrj-ing arc in locomotives .........■■■■ "« 

Firearms : Dixon t'. Bell gj- 

HxploBlTM and other dangeron. good. '.'.'.'.'.'.'.'^. . . 617 

(;»» escapes '■,.'".'". 618 

Poi^inous Drugs : Thomas r. Winchester 

Difflcaltie, fell in England : George .. Skmngtcn ^^^ 

darker. A. i N. Co-op. Society ■ ; .„., 

Dnties of occupier, of building, in respect of «.fe repair . . . . . . . . . . ^^^ 

Extent of duty .•"Vj '.'.'. Ti.m« 522 

Modem date of the settled rule: Indermaur r. Dame. ■■•••■";• ^..^ 

Persons entitled to safety r^.^- 

Uutyinrespectof carriages, ships, &c 629 

Limits of the duty '"'^ 5^9 

I'oUnti mttjit vilttrid ' 530 

Duty towards passers-by ■ 53, 

Presumption of negligence (n, if>,< 1<h,u,I«,} ..■■■ ■ ■ ■ ••■■•• • ■ ■ • ■ ■ ^^^ 

Distinctions ^ ' ' 535 

Position of licensees 638 

Hoataudguest •; ,',' ,539 

LUHlity of licensor for ■• ordiuarj- negligence ■.;".'.'.'.■■.'..,. 539 

Owner not in occupation 



, .. 341 

Original theory of forms of actum ^^^ 

rrr2:^r^:^amda;..icat;onasf;„uaed„n-.n^ac;oit^ 6.3 

Classes of questions ariBiuK 

I. An<,n,„ne tor,,,, »/ J!,W, ... :l,' «»»' '■«"■' "/-"'"'■■ .^^ 

One cause of acUon and alternative remedies '^^^ 

Common law doctrine of misfeasance • • • ■ ■ ;• '■•■,■, ' ' , .„ 

Special duty of earriei. and innkeepers by " .ustom of the realm . . .648 
Eativ/of form doe, not atfeet substance of duty or liabilit,- .... 649 

In modem law obligation wholly in contract '.'.'.'.'.'. 551 

Umita of the rule 

II. Coiicurrait Ciuumf Acliou. 
Cases of tort, whether .,f contract or no contract between same parties ..ri 
Contract " implied.iu law " an<l waivev ot tort 



ImplW .Hnmty „f .Kent', .uftority : CoUen .-. Wright. . "« 

Co^cnrrtnl „a«, of actiou .g.i„« different parties 5j« 

Dalyell r. Tyrer °°" 

FoiUkesr. MetropoUt.nDirt.Rico fff 

Kelly ». Metrop. By. Co '" 

Alton r. Midlimd R. Co. : no longer authority . „„ 

Winterhottom r. Wright, ic .., 

Conourrenee of brewh of contract with" deiii,i'in'R.;,i;,;,'iaw" .'.'.■.■.■■ sej 

III. C,,u.,. o/,letic,, in nn d,p^i,„t m „ Vml,„« „„( i,l„„„ 

the iirme J'tirtieg. 

L'anse. of acUon dependent on a collateral contract «, 

Procuring breach of contract " 

Damage to stranger by breach of contract .It 

and United States "-guino 

The conflict considered on principle .....' f^ 

Character of morally innocent acts atfo'cUi by'eVtr^;;'„L'j;;n,;;;;:: 370 

IV. Mmnre t>/ Il,i,,i«ga miil Mtr Imiienu t,/thi- Stiiud,,. 

Measure of damages 

Rule as to consequential damage .1 

Penal character of action for breach of prom]^ of manage 57! 

Contracts on which ezccntors cannot , .. /. 


A.-Historial note on the clas«aeation of the form, of personal 

action. (By Mr. F. W. Maithind) 577 

B-— I. Trade Disputes Act, 1906 ^o, 

II. Employers' Liability Act, 18«o ..!!..'."! .'.'.".'."[!1.'.".']] 597 

C— Statutes of Limitation ; 

21James L c. 16, as. 3, 7 „- 

^ & 5 Anne, c. 3, s. 19 .oj. 

19 4 20 Vict. c. 97 (MereantUe Law'jiinendm'enVAct).'^.'!'].'." 597 

D.-Conlributorynegligence in Roman law 599 



Tbefatory Note ^^^ 

Gefeiul Paet— 

Chap. I. General principles of liability 606 

II. General exceptionH 816 

Special Part— 

HI, Assault and false imprisonment tJ^e 

IV. Defamation ^'^^ 

V. WroDKs against good faith 6*0 

VI. Wrongs to property ^** 

VII. Nuisance 649 

Vin. Negligenc 6-'5 

IX. Of damages for civil wrongH GG7 


Abd:'l Hakim r. Tej Chander ' Anderson 
Mukarji, tiS7. 

Abralinm v. ReymildH, .539. 

Abr"' amt« v. Dcakin, m. 

Ab^ h V. N. E. Rail. C.»., 3-J3, 64:j. 

AcketH V. Howai-d, 129. 

Acton c. Biundell, 1.56. l.", 161. 

Adam r. Britiafa and Foreiirn SS. 
Co., 09. 

Adams t\ L, & Y. Rail. Co., 492. 

Adamson r. Jarvio, 206, GU. 

Addie v. WcKtern Bunk of Scot- 
land, nee Western Bank of Scot- 
land r. Addip. 

Additt '■. Gramophone Co., .)Tri. 

Agincourt. The, 131, 

A(riug f. Great Western Collit'ry 
Co., 574. ' 

Aikenet v. Wisconsin, 24. 

Aiello f. Wor*ley, 1;)5, :i22. 

Alabaster r. Harness, 345. 

Alderson v. Waintell, 140. 

Aldred's Case. 422, 6.')2. 

Aldrich r. Wrijrht, 178. 

Ale:;ander t-. Jenkins, 2J)2. 
■. N. E. Rail. Co 

Ambler c, Gordon. 429. 
Ames r. Union Rail. Co., 6(>0. 
Gnrrie, 110, 12(). 

r. Radfilitfe, 3H7. 

Andrews f. Mitchell, 127. 

r. Mockford, 306. 

r. Wuite. 4;10. 

I Anjrle V. ChicHBro, St. I'anl. kc. 

1 RaU., 337. 

i Aoifus r. Clifford, 2U7, 302. 

Ankerson r. Connelly, 430. 
; Arkwright '■. Newbold, 299. 
I Anthony v. Hauey, 400, 
' Applebee r. Percy, .»13. 
I Arlett i: Ellin, 433. 
I Armory r. Delnmirie, 381, 394. 
; ArmKtrong: v. L. & Y. Rail. Co., 
; 659. 
; Arnold r. Holbrook, 404. 

Ash V. Dawnay, 408. 

Ashbyr. White, 128, 129, 189,344. 

Asher f. Whitlock, 382. 

Ashworth t: Stanwix, 10". 

Atkinson i-. Newcastle Waterworks 
Co.. 28, 200, 201. 

Attack r. Bramwoll, 407, 

, 208. 

r. Southey, 370. 
General Council 

AUbutt ('. General Council of 

Medical Education , 126, 280. 
Allen V. Flood, 24, 25, 2fi, 158, 161, 
25ft, 325, 330, 333, 335, 
338. 341, 345. 

r. L.i:8.W.Rail.Co.,94,Cl3. 

r. Martin, 411. 

AlliuRon t' General Council, &c., 

Allsop V. AUsop, 24S. 
-Uton r. M. Rail. Co., 550. 500, 

561, 576. 
Amiinn v. Danim, 639. 
Ambergate, Ace. Rail. Co. v. M. Rail. 

Co., 402. 
Ambler (Jeremiah) & Sonsr. Brad- 
ford Corporation, 215. 


Brightim & Hove Co- 
operative Supply 
Association, 422. 

'■. Cambridgu Counumers' 

Gas Co., 438. 

r. Cole, 422. 

r. Colney Hatch Luimtit; 

A)«ylum. 442. 

f. Gas Lijfht and Coko Co., 


f. Horner. 3SS. 

'■. Manchester Corporation. 


V. Margate Piir Co., 215. 

,._ Metropolitan Rail. Co.. 


V. Sheffield Gob Co., 438, 

— - — V. Tomline, 152. 
Austin r. Dowling. 228, 229. 

«, O. W. Rail. Ch)., 549. 

553, 554. 




Amtralia, Thiv 203, 204. 
AnrtTHlUn New»p«per Co. r. Ben- 
nett, 260. 
Avia «. Newman, 363. 
Ayndey ». Glover, 428, 43(1. 


B«ok r. Stacey, 429. 
fiaokhonie I. Bonomi, 190. 214. 
Baddeley ». E«rl Oranvllle, 530, 

Bagram v. Khettranath, 3oH. 
Bambridge r. Postraaitter-General 

86, 116. 
Bairdc. Wella. 127. 
Baker i . Carrick, 278. 

n. Sebright, 36.1. 

c. Snell, 612. 

Baldwin p. Caeella, 612. 

■. Elphinston, 2.5,j. 

i[ Barber 

|! Barker 

% Bamee 

Ball, Ei parte, 206, 207 

V. Bay, 425. 

Ballacorkieh Mining Co. f. Ham 

Hon, 166. 
Ballantine r. Oolding, 212. 
Ballard v. Tomlinson, 157, 606. 
Balme r. Hutton, 123, 369. 
Baltimore and Potomac R. R. i 
Cnmberland, 471. 

and Potomac R. B. i 

Fifth Baptist Church, 136. 
Bamfield r. Ooole and Sheflleld 

Transport Co., 143. 
Bamford v. Tuntley, 422, 423, 652. 
Bank of New South Wales r. 

Owaton. 94. 
Barber f. Penley, 410. 
Barker r. Braham, 77, 227. 

i: Furlong, 368, 374, 38^ 

Barnes r. Ward, 181, 530, 665. 
Bamett v. Guildford. 387. 
Barry f. Croskey, 291. 
Barton r. Taylor, 124. 
Barton's Hill Coal Co. i: Reid, 80. 
Barwick v EoKlish Joint Stock 

Bank, TS, 97, 98. 314. 315. 
Bastard r. Hancock, 683. 
Batchelcr r. Fortescue, 638. 
Baten'H Case, 41K, 43.'",. 
Bavins, J., and Sims v. L. i S. n . 

Bank, 378. 
Bayley r . M. ». i: L. E. Co.. 92, 

Beard -■. T,. (Irncr.i! Omnibus Co . 

Beam, The, 02. 
Beasley r. Roney, 69. 
Beaumont v. Greathead, 189. 
Beoher r. G. E. Rail. Co., 6-59. 
Beckett i. M. Rail Co.. 416. 660. 
Beckham r. Drake, 676. 
Beddall r. Maitland, 396. 
Beddow v. Beddow, 198. 
Behrens p. Richards, 198. 
Boll V. G. N. Rail. Co , 64. 

,: M. Rail. Co., 195. 

Benjamin •'. Storr, 416, 650. 
Benton t. Pratt, 317. 
Bemina, The, 473, 480, 496, 667. 
Berringer r. G. E. R. Co., 567. 
Berry i\ Da Costa, 196, 576. 

c. Dono%'au, 342. 

Bessey r. Olliott, 146. 
Betts r. Giblins, 203, 204. 
Bhngwan Meetha ''. Kasheeram 

Govurdhun, 618. 
Bhyran Pershad r. Isharee, 627. 
Biddle f. Bond. 374, 375. 

». Hart. 588. 

Binks I. S. Yorkshire, Sc. Co., 530. 
Bird r. Holbrook. 168, 180. 

c. Jones, 226. 

Bisooe I-. a. E. Rail. Co., 136, 

Bishop V. Balkis Consolidated Co., 

Black r. Christchurch Finance Co., 

Blades i: Higgs, 386, 399. 
Blad's Case (Blad ». Bamiicld), 

208, 211. 
Blair r. Bromley, 99. 
Blake v. Barnard. 220. 

p. Midland RaU. Co., 09. 71. 

Blakemorc v. Bristol and Exeter 

Rail. Co., 538. 
Blamires f. L. la Y. Rail. Co., 202. 
Blisset r. Daniel, 128. 
Bloodworth v. Gray, 251. 
Blundell, Weld i-. Wolseley, 36.'.. 
Blytb f. Birmingham Waterworks 

Co., 41, 48, 49, 449. 408. 
Boden r. Roscoe, 402. 
Boloh t. Smith, 537, 067. 
Bolingbrokc t: Swindou Local 

Board, 94. 
Bonnard f. Perrymao, 198, 286. 
Bootl, .-. Arnold, 252. 
Iiorrow. r. Ellison, 214. 
Boson V. Sandford, 583. 
Bostock r. Ramsay V. D. C, 216. 
Boston and Albany R. R. Co. ' . 
Shnnly, 617. 



Bottomley v. Brougham, 120, -272. 
Bound V. Lawrence, 693. 
Bourne v. FoHbnioke. 881. 

V. Swan i: Ed^ar, 322. 

Bowen < . AudcrBoo, 444. 

V. Hall, 337, ftflA. 

Bower i-. Peate, 535. 
Bowker v. Evatu. 64. 
Bowyer r. Cook, 399, 409. 
Box V. Jubb. 506. 
Boxfiiufl r. Ooblet Frireu, 256. 
Bradford, Corporation of r. Fer- 
raud, 157. 

— f.Picklefi, 

25, 167, 161. 
Bradlaugh r. OuaBett, 124. 

'■■ Newdejifate, 345. 

Bradshaw r. L. & Y. Rail. Co., 68. 

Brannigaa v. Robinson. 587. 

Bray t-. Ford, 285. 

Brennan »'. Donaffhy, 56. 

Brewer r. Dew. 194. 

Bridge v. Qrand Junction Rail 

Co., i7% 480, 489. 
Bridgi-H t. N. L. Rail. Co., 461, 
466. ' 

Briggsr. Union Street Rail., 491. 
Brintimead v. Harrison. 202, 370. 
Bnetol and W. of England Bankv. 

M. Rail. Co., 378. 

British Cash and Parcel Conveyom 

V. Lamaon Stoi_ Seirioe Co.. 

345. ' 

Britiah Mutual Banking Co. v. 

Chamwood ForeBt Rail. Co. 96 

98. ' ' 

British 8. Africa Co. v. Companhia 

de Mo(,'ambique, 210. 
Broadbent >: Ledwsrd, 680. 
Brodor v. Saillard, 422, 425. 
Brcmage r. ProsHer, 254. 
Broughton r. Jackson, 230. 
Brown r. Boorman, 546. 

'. Eastern and Midlands 

Rail. Co., 54. 

f. Edginfrton, 298, 547. 

■ f. Kendall, 140, 143. 145 

150, 620. 

V. Notley, 411. 

Browne r. Dswaon, 398. 
Brownlie c. Campbell, 288. 
Bruusden r. Humphrey, 197. 
Brunswick, Duke of r. King of 
Hanovi-r, 117. 

r. HamiBr, 256. 

Bryant v. Herbert, 15, 580, 582. 

■ r. Lefever, 427. 

Bubb c. Yelverton. 365. 
Buchcr r. ChcHhirf, 18;i. 

Buckley r. OroM, 382, 
Buddie r. WillRon, 547. 
Bullera v. DiokinBon, 430. 
Bullock V. L. G. O. Co., 197. 
Bulmer v. Bulmer, 70. 
Burdettv. Abbot, 401. 
Burgew r. BurgeH->, 162. 

r. Gray. 83. 

Burling v. Read, 432. 

Bumard v. Haggis, 58. 

Bums r. Poulfon, 88. 

Buronv. Denmati, 115. 

Burr r. DniryLane Theatre, 104. 

105, 589. 
Burruughes ♦■. Bayne. 362, 369. 
Burrowes i: Lock, 199, 301, 302. 
Burrows v. Erie Rail Co. 494. 

'■ Mareh, &c. Gas Co., 

Rhodes. 203, 204. 

Bush v. Steinman. 82. 

Butler V. M. S. & L. Rail. Co., 390 

Butterfield r. Forrester, 479, 480 

Byrne v. Boadle. 532, 656, 66(;, 
Bywell Castle. The, 490, 660. 


Cabell f. Vttughan. 58U. 
Cable ( . Bryant. 427. 
Calderr. Halket, 120. 
Caledonian Rail. Co. r. WalkerV 

Trustees, 133. 
Calliope, The, 528. 
Cameron r. Nystrom, 84, 106. 
Campbell Davyn - . Lloyd. 434. 
Campbell c I'addingtou Corpora- 
tion, 416. 

■ V. Spottiswoode. 262. 263, 

Canadian I'aciKc R. Co. i\ Parke, 
130. ' 

(. Roy, 

Cape f. Scott, 41)2. 
Capital and Counf'as Bank '■. 

Henty, 264, 258, 629. 6y.i. 
Carey '. Lodbitter, 423. 
Carpue t: L. & B. Rail. Co.. 458. 
Carr r. Fracis Time»> & Co., 209. 
Carringt(m v. Taylor, ^45. 
Carslakoy, Maplciloram. 251. 
Cai airs r. Taylor, 500. 5(i7. 
Cai r f, Drysdale, 592. 

r. Thomas. ?75. 

Cartwright, Rv, 3t'3. 



Cavalicp r. Popt, 626, 640, .iCi. 
Central Rail. Co. of VcnezaeU r. 

KiMrh, :I08. 
Chnlfcni r. Oolil»mid. :)44. 
Cliullis r. L. 4 S. W. Bail. Co., 481. 
ChumberUin v. Boyd, 218. j 

. r. WilliamHon, 63, 

.■i7.'). 670, 68;). 
Clidiiiherit f. Uoldtliorpe, 121. 
Chniinian i-. Auckland Union, 430. , 

.-. Hothwell, .WS. 06.1. 

Charlei r. Taylor, 104, j 

Cha»eraore f. Richards, 160, 161, 

.501, 021. 
Chastey i'. Ackland, 427. 
Chatterton f. Secretary of State for ' 

India in Council, 274, 037. 
Chenhire r. Biiilev, 8«. 
Chilleriel -. Watson, 102. 
Child ». Heam, 488. 

V. 8und», 683. 

Chinery c. Viall, 376, b'lO. 
Christior. D.ivey, 410. 
ChriHtopherson r. Bare, 222. 
Chuuder Narain Singh r. Brijo ! 

Bullub Gooyee, 616. 
Citi/en'H Life Assuranoe Co. r. ] 

Brown, 6i, 97, .324. 
City of Loudon Brewery Co. r. 

Tennant, 427, 428. 
Clark r. Chambers, 4.'), 60, 51, o2, 
340, 485, 4S7. 609. 

V. London General Omnibua 

Co., 66. 

.-. Molynenx, 275, 279, 284. 

.-. Woodn, 122. 

Clarke r. A. & N. Co-operative 

Soc, 621. 
Clarkson r. Musj^rave, 592. 
Clayard» v. Dethick, 492, 404, 660, 

Clayton f. Le Roy, 369. 
Cleary v. Booth, 120. 
Cleather i. Twi»dcn, 09. 
Clements r. Flight, 5S0. 

r. L. « N. W. Bail. Co., 


CliS r. M. Rail. Co.. 056. 

Clilford r. Holt, 428. 

CliBsold «. Cratchley, 327. 

Cloughr. L.iN.W.Bail.Co, 

Clowes i: StHtfordshire Pol 
Waterworks Cn., 442. 

Clydesdale Bank i'. Patim, 312. 

Cobb 17. (i. W. Bail. Co., 48, 463. 

Cockle e. S. K. BaU. C.j,, 466, 

Colchester, Mayor of r. Brooke, 


Coldrick ». Partridge, Jonoa * Co., 

Coler. Turner. 219, 221,620. 
CoUard p. Mat»hall, 198, 280. 
Collector of Sea Customs r. Pun- 

niar Chithambarar.., 610. 
CoUen r. Wright, 655. 
Collins r. Kvans, 204, 296. 
CoUis .-. Selden. 329. .562. 
Colls ( . Home and Colonial Stores, 

423, 428. 429, 430. 
Commissioners of Sewers v. (ilasse, 

Commonwealth « . Collberg, 104. 

r. Pierce. 223, 433. 

i: Bubin, 407. 

Conroy r. Peacock. 591. 
Consolidated Co. r. Curtis, 373. 
Conway v. Wade, 99, 347, 685. 
Cixik r. N. Met. Tramways Co., 

r. Sprigg, 114. 

Cooke 1-. Forbes, 438. 

r. Midland (i. W. B, of 

Ireland. 40, 471, 483, 487, 630. 
Cooper V. Crabtree, 411. 

1-. Willomatt, 371, 373. 

Cope V. Shurpe, 174, 176, 406. 
Corbett r. Pearre, -593. 
Corbv 1-. Hill, 394, 631, 630, 665. 
Comfoot r. Fowke, 312, 313 
Comford r. Carlton Bank, 62, 324 
Cornish v. Accident Insurance Co., 

r. Stubbs, 391, 648. 

Cory & Son r. France, Fenwick Si 

Co., 484, 486. 
Coryton f, Lithebye, 682. 
Coturell r. .lones, 328, 329. 
Cotton V. Wood, 456, 436, 6o,. 
Couch ». Steel, 201. 
I Coulter V. Express (^o., 49 1. 
I Coupe Co. I-. Maddiok, 367. 
I Courtenay '■. Earle, 546. 
I Coward r. Badde' v. 221. 620. 
I Cowley, Earl r. Countess Cowley, 

f. Newmarket Local Board, 

Cox V. Burbidge, 47. 510, 611. 

1 . r. English, Scottish, and 

Australian Bank, 187, 323. 

f. 1.. W. Rail. Co., 688. 

Coxhead r. Richards, 278, 639. 
Crabtree c. Bobinscm, 403. 
Cracknell f. Corporation of Thet- 

ford, 134. 135. 
Craftier c. Metrop. Rail. Co., 460. 


KjTiocli, 102, 10,1. 

Cribb V. Kynwh, 102, 
t-nppH r, Judjfe, .187. 
Croft .-. Ailimn, SS. 

cTJf^^ '': I'W'"'™'". 4 J I, CM. 

Crumble «. W»ll.Bn<l L«„l B«.rd. 

Cnimp , . Lambert. 420. 42 1 
Cuenod ,-. Leslie, SO, 

Kwr'i?''"""""'' ''"'"'"'' »'"' ! 

r,';;'.''^'''-u'''"'''»^' ■'■'»• "l- i 

Cutto r. Spriujf. .-is:'. | 


Dakhyl ,.. Laboiiclirrp. |>C3 -iTo 

Walton !■. Aug^un. :l«8, 4^;. 

*. Pit/^nilil, 382 
f— — t-. S^ E. Rail. Co., 72. 

naljrell ,-. Tyrer, »;). .v.e, .5,',7 
Uaiiby «. Lamb, .'iSO. 
JJand r. Sexton, 3.5ii. 
Daniel r. FerKuson. 43;. 

Met. Kail. Co.". 491 

Darley Mam Colliery Co, 
_ cboU, 190, 214, COS. 

. Mit- 

....«.., lay, ^i,, (lyy^ 

Darlmjfton .. Ro^ie 4 Sons, 109 
Daaawood r. Magniac, 385 
Uavej- r. Aakwilb, 363 
— — ..L^&8.W.Haa.Co.,464. 
c^.!m ""'' ^'^'"'y Coal 

Davidson v. Hill, 69. 

Davies, Ex parte, 375. 

•'. Maun, 478, 470, 480, 481, 

c. Marshall, 167, 

■ ('. Snead, 277, 6.'i9. 
'■. Solomon, 248. 
- — ^ "■ Williams. 432. 
Davis V. Duncan, 26.i. 

V. Gardiner, 2oO. 

■ V. Saunders, 148. 

r »- Shepntone, 266, 279. 
Davys Campbell ... Lloyd. 434 
Dawkins r. Antrobu». 127, 618 

"• Paulet, Lord, 273. ' 

—--—»Rokeby,Lord, 121,273 
— — — -J. Saie- Weimar, I'rince 

Edward of, 121, 273 
Day 1.. Broivnrigg:, 162, 320. 
Dean v. Bennett. 128. 
r. Peel, 237. 


"co°,»29"- '■■"" """"" "'P"' 

Dean of St Asaph's Case, 1(4. 
Ueane t. Clayton, 178. 

DeKg-^M. hail, Co., 107, 1*2. 
De Medina r Omvo. 327 
Denaby and Oadeby Main C,.lli,.ri„ 
1^.^ Yorkshire Miners' A.s,*i«tion. 

Denison r. Ralpbson. S«|. 

.».). 314. 5.,2, .566. 
Derry r. Peek, 2»0, 291, -'9,5 vi),; 
W, 300, 301, 302, 305. 306, 31,1,' 

' Dc Wahl 1: Braune. .-.7 

Dewey,-. White, 174. 

Dhurmehund p. Nanaohaee Go... 
) bak-hund, 618. 
I Difkeson r. Watson, 146 N.E. Kllil. C0..69 
Dickon r. Clifton, 347 
I picks,.. Brooks, 317, 318 
Dickson 1. Keuter's Telcgrsm Co . 

268, 269. 
■516. 519, 

nigby,-. ri„unci,I[,-e„., 
Ditcham f. Bond, 235 
Dijon ,. Bell, 48,, 45- 

■iao, 522. 6B3. 
pobell ,-, Stevens, SOH 
Dobree ,-. Napier, 211 
Dominioi. Natural (las C... ,■ 

Collins, .519. 
Donaid ,.. Suckling. 373. 645 
Donovan >■. Laing. 84 

Com^il^fTr^llf =*"■« '■' 
Doujfhty r. Pirbank, 588. 
Doulson.. Matthews, -'lo 
poyley ,-. Roberts, 252 
Drake, Ex parte, 370. 

iJ?"", !■ ft"ivian Guano l.'o,, 
Dnimlanrig, 489 
Drury v. N. E. Rail. Co.. 403 


Du Boulay e. Du Boiilay, 16> 
Duckworth ,.. Johnson, 71 
£''''^''^-.W'it<'i-Co,, 54. .M,/. 
Dunn .■.Birmingham Canal C0..607 

~Fo.,'i66 "• *"■ N«»W'- 
Dunston e. Patetson. 123 
Dyer ,■. Hargrave. 308. 
r. Munday, 96. 



Emm r. Orimwix^. 238. 
E«le..King««.t«,59 6n (^, 

Kit''» Corporatio. .■■ j 


Edward! «.!..«='■"• 



ElSi;^--Mariet«' Chair Co., 

•"!■ ^ .)n- 
Elliott, Ex p»rt«. •'"'; 
«. Oarrett, 2»o. 

u. H«U, .Vi7, 66«. 


:=:::ffl:>dTa?co„;u»cr»' ; 


Packet Co.. 37 ,3'^. 

_,.. Wslton, ■■i'JO. 

Eyre, Ex i)arte, 99- 

F.i,tar.t .. Uj.rp«.l AdelpW 

Loan a™., 6'. »'• 
F„l„y ,. 9l.»forf, 187^ Ki.>! 
Farquhawon Bros. « *.-"■ 

» Co.. 379. 

vlrwell <■. Bo.ton and W"'"'?^ 
Sitod Corporation, 79, 101. 

! ni;i, in». 613- ,,, .,,. l-reotiM. *1 ;.»■'■ 
; Featf. Moriian 428. 

Feltham .. tagl'"*;. ""■»„ 
; Fe»n.'. Bittle.toi.,3.7, 38"- 


Fi'^'»™ <■• S'J'l ^O"'"""' *^''' 
' Fi«V.N.y.CBatralB.K.Co., 


London, 368. .,, 

Finlay ». Chim«y, 63. 5,o, •>»' 

; FiUgeraldt. Firbaok. 388. 

Fit2patri"k i . Evans « ^o 
FivaVr. NichoU., 183. 
i Fleming ..Dolar, 208. 

,■. HlHlop, *2l, 4^'. 

I Fktcher, Ex parte. SM. 

; ;, BylaudB, 4J8, J02. 

1 "Z . r. Smith. Mi- 

1 isr>i;rirLrt%Rai>.co.. 

Foradike r. Stono, 191- „ - ,, 
FoalKcr. Sj«<=omb 253. 

iF.^^.-fc-fa'*^"' "■"'"'■ 
Franoonia, Tlie. I". . ..^ 

Franklin ...S.E.H..l.Co.,^l.. 

: Frav 1. Btujkbum, 120. 



n«ke r. Calmadf . 364. 
IVemMtle r, L. k N. W. RaU.Co.. 

fi08, 683. 
Frith'R Cue, Mi. 
Fritz r. HobMm, ilft, 41ft, 426, 439, 

FVoffley r. Eu-1 of Lovelace. 390. 

Gallagher 1-. Piper. lu5. 
Uandjr ('. Jubber, 444, 054. 
Uaoeiib Sinfrh v. Ram Rajs. 614. 
Oardoer r. Hiohigan Central R. R., 

Oarland r. Carliide, 401. 
Garnett i . Bradley, 189. 
Garret c. Taylor, 241, 335. 
GuH Light and Coke Co. r. Vestry 

uf St. Mary Abbott's, l:J7. 
Uathercole v. Miall, '^66. 
Gaunt V. FjTmey, 438. 
Gautret i: EKerton, A35, 6:t6. 
Oayford v. Chouler, 409. 
Gaylard r. Morris, ;)60. 
Ged-iin r. Proprietors of Bann 

Reservoir, 133. 13d. 
Gee t>. Met. Rail. Co.. 174, 491, 

492, 660. 
Gebanuji bin Kes Patll v. Gaupati 

bin LaliHfauman, 650. 
iJcurge and Richard, The, 44, 70. 

V. Skiongton, 519, .520, 602. 

Gibbons v. Pepper, 148, 149. 
Gibbsf. Guild, 216, 

V. G. W. Rail. Co., 588. 

I Hblan t-. National Labourers' 

Union, 98, 334, 340, 342. 
Gibson I'. EvBiiB, 258. 
Giles f. Walker, 504. 
Girisb Ohunder Das v. Gillander-. 

& Co., 611. 
Gladwell r. Htefrgall, 645, .HO. 
Glamorgan Coal Co. r. S. Wales 

Miners' Federation, 339. 
Ulasiur r. Rolls, 296. 
GlaRspoole 1. Yi""ig, 123, 401. 
Gli-dhtane r. Hewitt, 580. 
Glenwood Lumber Co. v. Phillips, 

(rlnbe Refining Co. r. Lauda Cotton 

Oil Co., 573. 
Gloucester Grammar School Case, 

Glover r. L. & S. W. Rail. Co., 39. 
<lotf ,-. G. X, Rail. Co., 93. 

Ooffin r. DonDellr. 273. 

Ouldamid r. Tunbridga WelU Im- 
provement Commii«(nieni, 439. 

Ooodson r. Biohardwm, 411. 

Goodwin t>. Cheveley, 402, 511. 

Gorham v. Gross. 535. 

Gorris r. S.' 28, 51. 202. 

Gosdea v. Elphick. 229. 

Graham v. Peat, 381. 

Grainger r. Hill, 225. 

Grand Tnink Rail, of Canada ' 
Bamett, 181, 537. 

Grand Trunk Rail, of Canada ' . 
Jennings, 72. 

Gray r. Pullen, 7ii. 

G. W. Rail. Co. of Canada t . Braid, 
508, 662. 

Green v. Grci-nbank, 550. 

Greene r. Cote, 362. 

Greeuhalgh r. Brindley. 387. 

Greenland r. Chaplin, 41. 

Greenslade f, Halliday, 435. 

Greenwell r. Howell, 215. 

Greenwood r. Hornuey, 4;tO, 

Gregory r. Duke of Bniiiswick, 
329, 330. 

— ; r. Piper, 86, 612. 

Griffin V. Coleman, 227. 

Griffith r. Richard Clay & Sons, 429. 

Griffiths r. Dudley, 589. 

1: London & St. Katharine 

Docks Co., 106. 

Orinham v. Willey, 229. 

Gnnnell ,: Wells, 238. 

Guille t'. Swan, 38. 

Gully f. Smith, 27. 

GwilHiim r. Twist. 83, 

Gwinnt'U r. Earner, 444, 654. 


Hadlcy r. Baxendale, 31, 573, 574. 
Hadwell i. Righton, 510, 511. 
Hailet* r. M.-irks, 229. 
HiUeMtrap t\ Gregory, 48. 
Halford r. E. I. Rail. Co., 657. 
Hall I'. Fearuley, " 19. 

r. Hollander, 238. 

f. Norfolk, Duke of, J90. 

Halley, The, 85, 208, 209, 211. 
Halliday v. Holguf«>, HJfi. 
Hatsey c. Brotherhood, 310, 317. 
Hambly r. Trott, "3, 74, 581, .')82. 
Hamilion c. Piindorf, 507. 
Hammack p. White, 29, 455, 457, 


UMBDwnmith RaQ. Co. r. Brand, 

i»3, )»«, Aia. 

Uaown >-. W>ll«r. 9S. 

Uardskrr v. ldl« District Cimnci], 

76, d.'I3. 
Hurdmuii r. Booth, ATI. 
HanniiD v. JohDwni, D9. 
Hsimer p. ComeliuM, :iU. 
Hurpcr r. C'bRrleHWurth, 'AH2. 

'. Luflkin, •rib. 

Hiirripi v. Briw;o. Aift. 

t. De Piiiuii. 4J7, iitll. 

r. Mobbfl, 42, 4l«. 

. . Perry & Vn., SS\>. 

HarriKou r. Bu<>h, 27^. 

f. Dukf of Kutlund, 180, 


r. Scmthwarkt Vauxhall 

Water Co.. 134, 4iy. 
Harrold r. Watney, 4.'i. 
Harrop ». Hint, a«7, 1 H>, 419, 

Hart I 

, Oumpach, 273. 

V. Wall, i.^s. 

Hartley v. Ciimniin)rt«, :2:J1. 

r. Herrintf, '2J54. 

Hiirvey c. Brydges, 397. 

r. Harvfy, 401. 

Htttcbiird V. Mi'jre. 67. 
Haycraft v. Crt-any, 'ifH, 

Hayen v. Michigaii Central Kail- 

rnad Co., 43. 
Haymau v. Oovemont of Biigby 

School, 1-^8. 
Huyii (-. CulUford. 627, fi2K. 
Hayward >'. Hayward, 281. 
Healdr. Carey, 371. 
Heatou r. Goldoey, 260. 
Heaven v. Pender, 447, 448, S20, 

526, 606, 666. 
Hebditcb r. Macllwaine, 2'>7, 278, 

HedgCH f. Taftg, 237. 
Hedley i-. Pinkney & Sons' S. S. 

Co., 105. 
Hellwitf v. Mitchell, 249. 
Helshant r. Blackwood, 271. 
Hcmmiiigs r. Oaawn, 27>^. 
HenderiKtii r. Williamit, 374. 
Hendriku t-. MohUku, 3'J2. 
HeuwDod r. HarriHOD, 262, 264, 265. 
Hepburn r. I^ordan. 437. 
Hermann Loofr v. Bean. 108. 
Heeke t. SamuelB'm, iSK?. 
Hetheriiigtou v. N. £. Rail. Co., 

Hewitt t>. Ltham, 391, 393. 
Hickman r. Mainey, 357. 
Hill '. BijTKP. ll*"' 

Hill r. New River O... 12, »1, 609. 
HlUard r. RiohardM>n, 82. 
Hillyer r. St. BartbuknMw'a Hoa> 

piul. 84. 
Hiude r. Baodry, 637. 
Hiort r. Bott, 34H. 366, 308, U44. 

/ . L. * N. W. Uiiil. Co., 370. 

Hir*t r. WtMt Riding I'nion Buk- 

ingCu.. 311. 
Hotfg r. Ward, 227. 
Hidden r. Thimipaon, 34'). 
Hole c. Barlow, 423. 
Holford r. Bailey. 385, 3H8, 024. 
HoUiday r. Nutional Telephone 

Co., 70. 6;*4. 
Hollinvf. Fowler, 10, 348, 350, 368, 

360, 372, 572. 646. 
Hutniea r. Mather, 29, 130, 141'. 
169, 173 . 

r. N. K. Rail. Co.. 525. 

I. Wiliwn, 394. 

HoUwortliy L'rban Council v. H. 

Rural Couni'il, 216. 
Hooywood I', Hollywood, 365. 
Hope r. ICvered, 228. 
Hopkinn r. U. N. Rail. Co., 38N. 
Home r. M. Rail. Co.. 573. 574. 
Homfall r. TlioiuaH, 307. 
Hot4hkyii, Re, 364. 
Houlden/t Smith. 119. 
Houlditworth v. City of (tla<'gow 

Bank, 97, 314. 
HonnMell ' . Smyth, 536, 667. 
Howard r. Shepherd, 663. 
Howe r. Finch, 588. 
Hubbuck & Sons r. Wilkinaou, 

Haywood ft Click, 318. 
Huber t-, Stciner, 212. 
Huckle V. Money, '93. 
Huggett r. MierK, 540. 
Hughes f. Macfle, 485. 

r. Percival, 535. 

Hulton & Co. <-. Junes, 259. 
HumphrieH V. Couoind, 5112. 
Hunt f. Star NewnpaptT Co., 262, 

263, 264, 270. 
Hurdmau r. N. E. Rail. Co., 157, 

Hurst r. Taylor, 530. 
Hutchins t-. HutchiuH, 331. 
Huttley r. Simmons, 328. 
Hyamttr. Web«ter, 76. 
Hyde v. Gnihiun, 390, 393. 
Hydraulio Engineering Co. r. 

MiHaffit', 574. 
Hynian v. Nye, 629. 
V. Van den Bergh, 428. 



Ibbotaon r. Feat, 34A. 
IlUd|r« r. Ooodwin. 609. 
Ilott .. WUke., 1«8. 
Inobbald c. Barrin^un, 424. 
Indermaur r. Dame*, li'i'i, AJ3, 

ya, 664. 

Inderwick i. Bnell, in, 617. 
InoM «. Wylie, iil. 
Irwio r. Deanuan, '238. 
Ivaj p. Hedffefl, .538. 

Jackwn c Adanu, ^4U. 

r. NortnuQdy Brick Co., 


r. SmithtOD. 612. 

' ff. WatHOD Ac duQN, 67. 

.Taooba e. Seward, 379. 
Jantea t'. Campbell, 14H. 

t. JoUt, 639. 

.leBriea r. O. W. Bail. O.., 3*1, 

.Teuka r. Vinwuut Clitden, 6H, 4.16. 
.Tenner p. A* Beckett, 266. 
.Tpnnini^ r. Rundall, 57, ,550. 
Jeuoure r. Delmege, 27.'>, '264. 
Jiua Rauchhod t>. Johh& OhelKi, 

Job II. PotUrn, 364, 360. 
Joel t>. Moriaon, 88. 
Jobn ''. BaooD, hii. 
Joboaon v. Diproee, 3M. 

V. Emerson, 327. 

r. Lancaabire & Yorksbire 

Rail. Co.. 376. 
r. Lindaajr, 85, 106. 

V. Pie, 57, 61. 

V. Stear, 376. 

Johnston r. Consuniertf' Gai* Co. 

ofToronto, '28, '201. 

1. G. W. Rail. Co., 187. 

Johnstone i'. Sutton, 124. 
Jolly .'. Kine, 429. 
Jones i>. Bird, 4.i3. 

1'. Boyoe, 492. 494. 

f. Chappell, 363, 417. 442. 

■ V. Festiniog Rail. Co., ol.5, 


«. Foley, 39.i. 

f. Gooday, 199. 

.'. HoU(?h, 371. 644. 

V, Jones, 432. 

V. Liverpool, Corporation of, 


P. T. 

Jones p. Llanrwit U. D. ConDoil, 

I'. Powell, 422. 

V. Scallard, 83. 

Jordeson i'. Sutton, 136. 
.Tordiu v. Crump, 178. 
Joynt r. Cycle Trade Publi«hintr 
Co., '263, 267. 


Kano r. N. Centnil Rail. Co., 496. 
Knrim Buksh r. Budba. 650. 
Kbibir&m Krishna i'. Bbadu 

BlipOji, 632. 
Kearney r. Lloyd, 328. 331, 334. 
V. L. B. & 8. C. Rail. Co., 

53'2, 660. 
Keeble p. Hickeringill, 345. 
Ki'en r. Henry, 85. 

• r. Millwall Dock Co., 590. 

Keigbly p. Bell, 124. 

Kelk r. Pearsim, 427. 428, 437. 

Kellard v. Hooke, 592. 

Kelly p. Mot. Rsil. Co., 5.M, 676. 

p. Sherlock, 188. 194, '26.5. 

p. Tinlinv, 265. 

Kemp p. Neville, 120. 
Kenyon r. Hart, S.'iS. 
Kerriwn r. Smith, .190. 
Kerry p. England, .il9. 
Kettle p. Broliisall, 580. 
Kiddle p. Lopett, 580. 

Kimber p. Press dissociation, '280, 

King p. Franklin, 131. 

c. London Improved Cab 

Co., 85. 

p. Pollock, 51». 

Kirk p. Oreuory, 176, 348. 360. 

0. Todd, 74. 

Kleinwort r. Comptoir d'lU- 

compte, 308. 
Knott p. Morgan, 321. 

Lahouchcre p. Wliamoliffe, 128. 

Lafooe p. bmith, 280. 
Lambert p. Bessey, 146. 
Lambton p. Mcllisb, 426. 
Lanoaabire Waggon Co. p. Fitz- 

hugb, 371. 


Lmiw 9. Capwj. 43'i. 

r. Cox, 444. AHJ, A40. 

LnnfniDohi v. Miu-krux)>-, 4'2U. 
LanirridvH >. Lrvy, COI. A-.*0. /I'lJ. 

Lan^htoD r. BUhup of Ktnl , Hud 

Hmh, 27N. -Jl«4. 
Law r. Llcwellxn. t!.), ^72. 
Lax r. Corponitioii ot Durtington, 

174, 494, 5:^7, A2N, (irtO. 
L«z»riu V. Artidtic Pltutn^frAphiu 

Co., 420. 
I^it I-. Cbarriautoii . 'i'tH. 
Leake r. LoTeday. liN-j. 
Leam« r. Bray. 147. 
Lee ■'. Riley. 47, AlO, riOt). 
Lee« t. Dunkerly Brwi , 106. 
Leoann r. General Medical Cuunoit, 


LMftratt V. O. N. Riil. Co., 08. 
Lehiffh Zinc and Iruu Co. r. Bam- 

ford, 2»6. 
Le Lievro r. Gould. 2»tf, 3i>J. 
Le Ma«on r. Dixoo, AH:). 
Lprnmon r. Wfbb. aA9. 4:»J. 
Lemprivre r. Lanire, 58. 
Lewirt V, Levy, ^Hl. 
layman c Latimer, '250. 270. 
lAftftian r. Idki!. 3!)^, 
Liffhtly r. ClouMUin, 5'iJ>. 
Limpun r liondon General Omni- 
bus Co., 95. 
Lintrwood P. Stowmnrkct Co., 437. 
Lister r. Ferryman, i2H, 230. 
Littl" r, Hackett, 83. 473, 480, 4H'2. 
Llandudno Urban D. C. v. Wuo«Ih, 

Lloyd r. Gmoe, Smith & Co.. 95. 
Lock V. Axhton, 229. 
L. & 6. Rail. Co. v. Truman, 136, 

137. i:i8. 61!>. 
London, Mayor of r. Cox, I2i. 
L. ft N. W. Rail. Co. r. Bradley, 

L«)n)nneid r>. Holiday, 520, 562. 
Lonsdale, Karl of r. Neltton, 41?, 

432, 4;U, 651. 
Lord r. Price, 367. 
Losee v. Burhanan, 515. 

i: Clut«. 629. 

Lovell r. Howell, 10l». 

Low V. Bouverif, 206, ;(02. :;05, 

Lowe f. Fox, 59. 

Lown r. IVlford, 39ti. 

Lowery r Walker, I S 1 , 5;J6, 5;t7,5US. 

LowthW r. Earl of Radnor. 120. 

Luby '■. Wodebtiuce, 116. 

Lumlev »■ Gve, 234. 235, 240. 337, 

338,"3;i9, 565. 

I.UM^ombe e. G. W. Rail. Cn„ HH 
Lyie.. Bamanl, 31<>, 31). 
Lyrll r. Gftnira D-ti. 143. 5|7, 6(13 
Lvli'nr. Hiiul(itiiitl.ori-S*'a('or|)ora- 

'll.tii, 21.V 
Lynch .-. Ktdtfht, m;, 2»H. 340. 

r. Nurdin, 45. 4'i, 48.1, ftO». 

Lyon >'. Kiidiimuiifeni' Co., 411, 

425, ti50. 
Lyoux '. Wilkinn. 240. 

Maaiw V, GaN Light and f 'oke Co. . 

Mftrheth Sc Co. V. Chi-Utt. 593. 
MrC-jrd r. Camnielt, 5HS. 
M'Ciilly r. Clark. 480. 650. 
MardouKHll r. Kniirht, 281. 
McDowall r. G. \V. R«il. Co., 46. 

Macfiidzen r. Ulivaut, 234 
MrGitfi-n r. Fiilmer'M Shipbuilding 

Co., 587, 
Maohiid.. i: FimteH, 210, 211. 
Mackay r, Comnieroial Bunk <>f 

Nvw Brunnwirk. 97, 311. 
M'Kenzio r. Iti'Leod, 613. 
McLiiutrhtin r, I'ryor, 83. 
MnMahou r. Kii'ld. 574. 
McManiw r. Cooko. 3»3, 
M'Mhiiuh r. Crickett, 05. 
Mcl'lierwju t'. I>aitieln, 254, L'6t. 
Mi-Qiiire n.Weat^'m Muniitig NewM 

Co., 263. 
MadraitRail.Co.r. ^..iiiindHro(L,u. 

vatcnafraram, fiO'i, 507. 001, OfJK, 
Malurhy I. Soiwr. 310. 
MnloiiH c, LawKfy, 4)2. 527. 
MuurhMtT, Mayor of r. Williunii', 

i;i, 2t9. 
Manchirttir Bondt'd Warvhoui-t; 

Cr). r. C.irr, 364. 
MaiichesttT Smitli Juiii'li'>ii Rail, 

Co. r. FulLiiton, 54. 
Miin^:an \, 4S7. tW.i. 
Matiifi'iia r Wright, 280, 
Manh'V r. Fit'ld. 237. 
MatiM-Ur. Griffin, 120. 
Maii/Dni r. Dou^lns. 457. 
Munii-s. 1). F , E.\ ii.irt.', 125. 
Miirkx '■. Fn)(fley, '-'4. 

V. Samuel. 245, 

Mamey r. Scott. 522. 527. 
Martth /-. BilltQgi4, ^iXH. 

r. JoiH,'p)l, lliO, 



Manh r. Kf^Hnir, •iOli, W! 
MHwhiill ,: Ynrli. Ni.w.iw(l«, and 
I)«rwi«k KhH. (■i..,4«4, ,MN,MO. 
MuMh*liM>H, Thf.. I2i. 
Martin .•. «. I. 1'. KhU. f..., WB. 

*■. I*«TIH', 237. 

— V. Vrict, i»H. 

Uurtlupx ». Oerbfr, -JJO. 
Mfirjf'* (R<>lM-it) t'mi>9, 2S3 
Marwtti .. WillUnm. .'.M. 
Mumper f. fimirn, TSIi. 
Ifkttiitr I'. hilUtfiD, 1,11. 
Mimnii V. UotimuuthMhire Vntiml 

Co., (il. 
May f. Itunlptt, .!!:». 
MoHtlf'^ uiid Belt'* C«iw, 2ii 
Mmr-... L..VM.W. Rnil. (;.►... {H7. 
Mt-trhraj r. /alcir JIuwain, (il,i. 
Mellor r. Hniitomun. 425. 

r. WBlkiiw, 3fll, tun. 

Hmlx-ry r. (t. W. Kail. Cu., 170. 
Meiinie I. BUki', ;t(Jl, ;i8fl. 
MiTfut c. l|jtrv{>y, 1!)4. 
Meriviili* f. C'dPmm. I'tii. -Jm, 2((« 

■.iiiO, tirj.i. 
Merry W'-itthor . . Nixtui, JO;). 
Merwy D.»!liH TniHteeB c. (Jibbo. 

ti2. y;i, i:)3. ti06. 
M»-trc.p..litan Atiwu-JHtion r. I'etch. 

Metn.poHtdii ANylum Dfdtnvt »■. 

Hill. i:iti. i;t7. 
Mp(rop<.litiiii Buiilc r. IVilev. ;i27 

■.U.%. ' 

Metr..p. Rail. Co. v. Ja«ki.oii, 4H. 
460, 4<i|. 

r. Wriifht, 187. 

Mflix r. iUAAvv, ;{*).-(. 

r. O. E. ttoil. Co. oo'J. 

Midland Iub. Co., r. Smith 2(Hi 
Miffhfll r. Sultau of Juhore, 1 18. 
MilfM c. Hutch iiifjH, 178. 
Millen <■. P'awdry, 511. 
Miller v. David, 2J1 

('. Dflt, -Iiry, 370. 

— — - r. Hunrotk, i)26. 040. 
Miliill^■tou V. Fox, 322. 
MilU c. ArmNtrou»r, 473. 4S2, 4S(j, 
41>'>, 6,77. 6.)y. 

r. Uraham. .iSO. 

Millward r. M. Rail. Co., 688. 
Milwaukee, &c. R. R. Cj. r. Arms. 
li):f, 4.i4. 

and St. Piiul R. R. Co., 

y. KelluKtr. 4(i7. 
Mitchell V. CraHnwellrr. 87, 89. 

■• Rochester Kail. Co., .')4 

Motfatt c. Bateman, 527, 539, 563, 

Mo^l Stramahlp Co. r. UcQrtmor 
Oow A Co., 23, 24, lii.i. IM. 329. 
311. 335. 347. 

Monatrhan -. Horn, (if.. 

Montfromviv ». Thompwo, IB2. 

I Moorcooh. The. 527, 528. 

Moore r. lUU. 429. 

I. Metrop. Rail. Co.. !>3. 

! -I-. RairiHin, 427. 430. 

'■. Rnbiniion, 353. 

MorKaii ' . London Ocn. Omnibua 
Co.. 593. 

I. Vale of Neath RaU. Co., 

Mownt r. MacferUn, 555. 

Mo«tyu t\ Pabrijriui, i|fl. 

Mutt V. Mhoolbrpd. 443, 054. 

Mouw'b Caat-. 175. 

Mowltrav f. Merry weathrr, 587. 

M. Moxham, The, 208, 209. 

Moylc r. JpukiiiH. 5tfO. 

Muhammad Ismail Khan r. Mu- 
hammad Tahir, 632. 

Muhammad Yusn. r. I'. & O Co 
614. " 

Multon p. St. John. 533. 

Mulligan r. Col.-, 258. 

MuIIiiier r. FlopfUce, 376. 

Mumford i . Oxford, &c. Rail. Co 

^lunday p. Thamei IronworkH Co 
'■)91. * 

Munnter t\ Lamb, 272. 637. 

Murphy r. Dvaoe, 4.57, 481 
Murray c. Currie. 82, 84. 

V. Fitzgerald, 232, 23.>, 237. 

r. Iliui, 379. 

MujKrave r. Chun^ T .'onj, iyy, 

Na(th f. Lucaii, 403. 

Natioual Phonojfraph Co. v Edi- 

son-Bcll Consold. Phonograph 

Co., 338, 343. 
National Piatt, Glaiw InsuraLce Co. 

I-. Prudential Asaurance Co. , 430 
National Telephone Co. v. Baker* 

Neate r. Denman. 127. 

Neltmn r. Liverpool Brewery Co 

444, 6.'i4. ' 

Nerlll ,. Fine Art. &o. lomnmoe 

Co., 25», 275, 038. 
Nowcomb ,.. Boston ProteotiTe 

Wepartment, 183. 



NewBun r, Pender, 430. 

Newton v. Harland, 30". 

Nicholt* r. Marsland, 139, ;*)0J, 506, 

Nilmadhab Mookerjee v. Dookee- 

ram Khottah. 632. 
Nitro- Glycerine Caae, 142, 160, 

N. O.'S N- E. R. R. Co. r. Jopes, 

Noel '■. Redruth Foundry Co.. 690. 
Norris i: Baker. 432. 
North Ea.'*tem Rail. Co. i'. WanlewH, 

461, 490. 
Northampton'.>« Earl of. Case, 261- 
NottiiiK Hill, This 573. 
Nugent V. Smith, iiilo, .'>47. 
Nuttall t. Braccwcll. 304. 
Nyberfi: r. Handelaar, 380. 


Oakey f. Dalton, 07. 

Ogaton r'. Abtrdeen Dwtrict Tram- 
ways Co,, 42fi. 

Oliver r. Lociil Board of Horsham, 

Orracrod i'. Todmurdcn Mill Co , 

Osbom t: Giilett, Go. liO. 

Osborne f. Chucqueel, 512. 

V. Jackson, 588, 59:!. 

Oxley r. Watt.-, 407. 

Palev V. Garnett, 5S7. 
Palmer r. Thorpe, 2.i(). 
V. Wiek and I'ulteneytDwn 

Steam Shipping Co., 203. 
Pappa f. Rose, 121. 
Paraiikusam Narasaya Pantula t\ 

Stuart, 027- 
Pardo r. Bingham, 211. 
Parker v. First Avenue Hotel Co.. 

V. London County Ct>uncil 

Parkes c Prei*cott, 257. 
I'lirkiiisr. S<^ott, 217, 261. 

Parlement Beige, Tlie, 118. 

PameU r. Walter, 280. 

Parry t. Smith, 51M. 

Partridge r. General Council, itc., 

126, 127. 
Parvalfl v. Mannfir, 629. 
Pahley r. Freeman, 292, 310. 
Pasmore v. Oawaldtwistle Urban 

Council, 28. 
Pater c. Baker, 316. 
Patrick r. Coleriek, 400, 648. 
Paul ». Summerhayes, 406. 
Pearce r. Lansdowiie, 593. 
Pearson and Son v. Dublin Cor- 
poration, 309, 313. 
Pearson r. Lemaitre, 285. 
Pea«e r. UloahL-c, 571. 
Peek V. Derry, 200. 295, 300. 

V. Gumey. 75, 199, 21)1, 305, 

641. 642. 
Pendarvi'9 v. Monro, 430. 
Pendlebury r. Greenhalgh. 82. 
Penningt/)n v. Brinsop Hall Coal 

Co., 442. 
Penny v. Wimbledon Urban Coun- 
cil, 70, 534. 
P.nruddook's Case. 417. 435, 445. 

Perry v. Clissold, 382. 

( . Fitzhowe. 432, 433. 

Perryraau v. Lister, 2;i0. 
Petrel, The, 101. 
Petrie v. Nuttall. 271. 
Phillips V. Barnot, 60. 

r. Eyre. 110, 209, 210. 

r. Homfray, 74, 582. 

f. L. & S. W. Rail. Co., 

187. 193. 
Pickard r. Smith, 522. 
Pickering v. James. 129. 

v. Rudd, 358. 

Piggot r. E. C. Rail. Co., oOn. 

Pikher v. Rawlins, 350. 

Pilgrim c. Southampton. &c. Co., 

Pinchon's Case, 67. 682. 
Pinet & Cit'. c Maisoii Louis Fiaet. 

162, 321. 
Pippin f. Shi'ppard, 515. 
Pittard t: Oliver, 282, 283. 
Pitumba DoBM r. Dwarka Pt-rshad, 

Playford /. I'. K. Electric: Tele- 
graph Vo.. 566. 
Plimmer v. Mayor of Wellington, 

Plymouth Mutual, &c. Society r. 
TradeTfl' Publishing Asaociation, 
204, 280. 





Polhill p. Walter, 291, 304, 640. 

P'tlley i\ Fordhiun, 215. 
I'onnuB&my Tevar v. CoUpctor of 

Madura, 607. 
Pontiffx 1. Bijniold, 190. 
Ponting c, Noake*. ;»04. 
Potter f. Brown, 212. 

V. FauIkDer, 107. 

Potts r. Smith, 42H. 
Poultun f. L. & S. W. Rail. C -., 'H. 
Pounder r, N. E. Kail. Co., ■,:i. 
Powell V. BirniiD(fham Vihi^.t 
Brewery ('o., ;i2i, 

V. Devenpy, iH. 

f. Fall, .MS. 

'■. Layton, 547. 

PowyR c. Blagrave, 363. 
Pozzi I'. Shipton, 548, ;J49. 
Pracd r. Graham, 187, 28r>. 
Pralhid MSh&nidra p. A. C. Watt 

Prc«land v. Bingham. 431. 
I'retty t\ Bickmore, 444, ().'i4. 
IViestley r. Fowler, 100. 
PrimroHp v. Western Union Tele- 
graph Co., ft70. 
Proctor r. Webster, 27y. 
Pugh V. L. B. & 8. C. RhU. Co., 64. 
Pulling r. O. E. Rail Co., r,H. 
Pullman ('. Hill & Co., 25;». 
Purcell c. Sowler, 261, 265, fi35. 
Pursell r. Home, 219. 
Pym f. G. N. Rail. Co., 71, 72. 

Quarman r. Burnett, 82, 523. 
Quartz Hill, &c.Co. v. Beall, 198, 
Quartz Hill, ic. Co. r. Eyre. 326 

Quinn t. Leathern, 24, 25, 152 159 

329, 330. 333, 334, 335, 338. 33!)' 



R., He, 430. 

Radley f. L. & N. W. Rail. Co., 

472, 474. 480, 481. 
Raffey v. Hendensoa, 393. 
R. Ragunida Rau v. Nathamuni 

Thathm&yyangftr, 616. 

Railroad Co. i. Stout, 47. 

Raj Chunder Rev v. Shamii Soon- 

dari Debi, 327, 643. 
Raj Koomar Singh i-. Waheb/ada 

Roy, fi.-.S. 
Rajmchun Bow t: E. I. Rail. Co 

136, 619. 
Knl.-'itrhp. Goscheo, 116. 
KhttwI^u ■ Dyson, 393. 
Huf^'dll '. lewson, 529. 
Kiim Sha .i.-^hoondri Deba f. Dubhu 

Mundi '. Oil. 
R.'[Uer V London Tramways Co., 

Raehdall t: Ford, 294. 

Ratcliffe r. Evans. 247, 253, 254 

316, 318. 
Raymond r. Fitch, o7i;. 
Rayuer t . Mitchell, 90. 
Rea r. Sheward, 403. 
Read c. Coker, 22 1 . 
— r. Edwards. 511. 

■ r. Friendly Soc. of Operative 

StonemaiwnH, 25, 338. 

t: G. E. Rail. Co., 72. 

Readhead f . Midland Rail. Co., 529. 

lieddaway *■. Bauham, 156, 321. 

Redgrave '. Hurd. 299, 308, 642. 

Heece r. Taylor, 223. 

Reed r. Nutt, 224. 

Recdie r. L. & N. W. R. Co., 82. 

Reese River Silver Mining Co r 

Smith, 300. 
R. *'. Burdott, 632. 

— t'. City of London Court, Judire 

of, .-.91. " 

— V. Coney, 164, 165. 

— !■. Cotesworth, 219. 

— f. Duckworth, 220. 

— f. Es8ex, Commissioners of 

Sewers for, 502, 606. 

— c. Harvey, 34. 

— V. Jackson, 130. 

— V. James, 220. 

— V. Latimer, 34, 148. 

— V. Lesley, 212. 

— r. Lewis, 164. 

— V. LincolaV Inn. Benchers of. 


— t'. Mnnslow, 254, 

— *: Orton, 106. 

— ' . Pease, 134, 137. 

— f. Riley, 399. 

— r. St. George, 220, 626. 

— f Sankara, 639. 

— *'. Smith, 33. 

— V. Train, 413. 

— r. Williams, 63. 
Reinhardt t'. Menta»ti, 42;.' 423. 


Reyneil r. Sprye, 299. 
Heynoldi* r. Kdwardi*, 4i)y, 

r. Prcstpijfn Urban Dis- 

tritt CuuiiciJ, 434. 

Rice t . Albee, 333. 

r. (Wlifijre, 272. 

!■. Manlfy, 317. 

V. Slmte, ii83. 

Rich i\ Bat-terHeld, 444, (i,>i>. 

t: Pilkiugrton, .5«3. 

Richardnou r. flriilmm. 4'iH. 
Ricket r. Met. Rail. Co.. 41.'), 41(i. 

Ridinjr '■. Smith. •J»7, -l.U. 
Rifrei, The, ^i</rf. 
Ridt c. Faux, 237. 
Robert Mary»' Cii«e, 233. 
RobfrtH r. Roberts, 24S. 

f. Rtwe, -130. 

r. Wyutt, 385. 

Rubiuiiuii r. Bulmaiii Sew Forry 
Co.. 225. 
(. Kilverr. 423. 
N. K. Rail. Co., 171, 

.1. '. Stout. 171. 

LanibtTt. 375. 
Riiieiidru Diitt. 15!>, IiiU, 

(. Spenoe, 194, 3K3. 

Roniney MarBh, Bailitt'fi of -. 

Tiiuity HnuNO, 44. 
Roope '■. l»"Avi{<riIor. 20(>. 
Row!<«- i: BoJeii, 402. 
Rose '■. Miles. 41'), (>;>(). 

'■. N. E. Rail. Cm., -ilifi, 11)4. 

Rotieuberg- v. C(H)k, 382. 
Ronewell r. I'rior, 445, (i.54. 
RuHB r. Rufffrt^-l'riL'e, 200. 
Rourke v. White Mohs Colliery 

Cc, 84. 
liowley f. L. & N. W. Rail. Co., 

Royal Aquarium Society i\ Par- 

kinwon, 273, 2S4. 
Rubeu v. Great Fing-all Cunwili- 

(lated, 97. 
Riishmer r. Polsue, 420. 
Runt '■. Victoria Graviojr Dock 

Co., 192. 
Ryder f. Wombwell. H52. 
Rylandd »>. Fletcher, 12, IH, 19, 

147, 149, 169, 49M, :n'l, 502, 503, 

50.^, 500, 50S, 509. 515, 522, (itil. 

.S. r. M. 16 Cox, ."ititi), 207. 
Sadjcrove r. Hole, 2«3. 
Sadler v. ii. W. RaU. Co., 197, 

'. Heiiluck, -SI. 

'■. Statford.-hire Tramways 

Co., .''.15. 

at. Awaiih'B, Deau iif, Case, 144. 
St. Jleleii'H Smelting Co. v. Tip- 
pinjf, 420, 421, 423. 439. tiSl, 
St. PaueraM, Vtittry of r. Batter- 
bury, 201. 
Salaman v. Sec. of State, &i;., 114. 
Salomons '■. Knight, 198. 280. 
Sulviu t'. North Brancepeth Coal 

Co., 420. 423, 441. 651. 
Sauders r. Stuart, fi70. 

r. Teape. 511. 

Saiiderison r. Culling, 8H, 307. 
Saner r. Biltou, 3iJ4. 
Satku Vulad Kadir Saiisare r. 
Ibn'iham Agu Valail Mir/i'i Ag;i, 
Savile or Savill c. Rohertw, 327. 
Saxby -. Maneltcnter and Sheffield 

Rail. Co., 445. 
SayerH v. Collier, 436, 
Scott r. Donald, 194. 
— — e, Loudon J)ock Co., 4-'>9, 
4(19, 532, fi57. 
; -- ' . I'ape, 429, 
— - r. SauiHou, 2Ktj. 

: ■ r. Seymour, 209. 

I '. Shepherd, 34,51, 147, 179, 


I 1. StauHlield, 119, 120, 272, 

Suitt's Truwteea v. Moss, 38. 
Scottish Co-op, Society v. Glasgow 

Pisherw' As.<4ociatiiin, 334. 
Seaman v. Xethen-lift, 272, 637, 
Searlese. Scarlett, 281. 
Secretary of State in Council of 
India t: Kamachee Boye .Sahabii 
Stlby i\ Nfttlefold. 4011. 
Senmyne's Case, 400. 
Serokii r. Kattenburg, 60. 
Seshaiyangar r. R. Raguiiatha 

Row, 61(i. 
Seton ('. Lafouc, S7, 378. 
Seward r. The Vera Cruz, 70. 
Sewell (. National Telephone Co., 

Seymour i . Greenwood, 92, 95. 



Shaffers i'. Gen. .Steam Naviira. 

turn Co., .',»j, '^ 

Hhama Chum B..-.. Bhola Nath 

T)utt. (Jill. 
Sliarp r. PdwcU, 49, .-,]. ,-,.i |ii,,| 
Shan- .. Il,Ttt<.nl»hire C, l' , -li! 
~- '■■.'■"" '■'''I'P ""111 .Mniiu;, 

Sheffleld Ik Lini«,hi«hire Uail Ci, 

Shiltcr f. City of I,„„d„i, Kle.lri,- 

Liifhtinif Co., 4:1;. 44." 
Shepheard v. Whitakor. i.iS. 
ahendan 1: Xew Quav Co ;f7I 

ShcITinf^^ton'H Caw, .582. 
Shiells I-. Klaekbiitne, 448 -.l.i 
Shott. Iron Co. r. Iiifli., 423. ' 
Simkin ,-. L. i N. w. Rail. Co., .5) 
Simijwon I'. Savaire, 44.1 
Siner .. (J. W. Hail. Co., 466. 
Smger Mauufaituriujr Co, i: Lm^r 


;: ; •'. Wilson, .320. 

Sm)fh.fc,n r E. C. R,il. Co., 4,s- 
Si-^ Carpenter.' Case, The, 407, 

Skelton . . L. it N. W. Hail Co 

Skinner . . L. B. ,V S. r. K„il Co 

— ~- i Co. r. Shew i Co., 23. 

Skippr. E. C. Rftil. Co.. I0(i 
Nlaue H C;ise, ;')4.'). 
Sl«tt«iy-« Case, 4(!;j, 4fil, 490. 
Shizen^rer & Sou-. ;■. Hp;iidiu^ & 

Bros., ;i_>0. '^ 

Slim f. Crducher. 109, ,'Hf2 1 

Smart i:Jotien, Sii.j. 
Smith f. As-..H;iatcd OmuibuB Co 

f>Wi ' I 

■ t. Bttkor. loll, 170, 171^ 172 I 

174, ;>:(o, ;",,ss. .isfi. "' ! 

*■. Biixter, r-U). 1 

r. Birmiiijflium (jm^ Co.. i»7. 

f. Bi)ston UtiH Co.. .017, 

''. Browfi, 70. I 

*'■ Browiilow. Karl. 4;}2. ,' 

c. Chmlwifk, -JDI, :t()0, ;jOfi ,' 


'■. C.iok, .-,](). I 

V. Giddy, :i.ii». 417. 

'■. Giwii, ;i(;, ruA, 

r. London Jiud St. Kiitliarinp 

DiickH Co., ni,',. (\(Ui. 
'■ L. i a. W. Ruil. Co., 42 
4=iO, 4(i(i, 467. .508, (i.iT 
r. MiUe^ .ir.ft. 

I Smith f. Nortlileach Rural Distrirt 
Coiinpil, 2lfi. 

■ r. S. E. Kail. Co., 4(14. 

^ — '■■ Sydney. •2>ii. 

Smithi,« ,■. National As«o.>iation of 

Oiirmlive riasffnrs. ;i4l) 
Suurk, Tlic. .r2H, 
S.iet.«by ,-. L, A: V. Rail. Co., ;17 
Snowdeii .-. Bavnes, -is.s 
Sultim »■. De H'fld, rii, 
SomL-ivilli; »■. irawkim*. :i7« (iijg 
Southcotc r. Stanley, ft38 ' 
Soiith Ht'tton Coal Co. r. N, K 

NtWM Apso«iition, lio.'f. 
Snuth Wale« Minrw- Federation r 
(-Fldmorjran Coal Co. -IM m 

^ 3;J8. • ''*'' 

Spade ('. Lyim and Bo.ston R. R., 

Spectator, The. 2C,[). 

Spt'itfht r. Olivii.ra. 2;Jli, l31) 

Spill r. iraulc. 27», ■J«4 

Staijfht c. Bum, 4:)0. 

Stanley r. Powell, 1,'jO 

Stanton (. Scnittun, .'iis7 

Starkey r. Bank ot Enjfland. .5,i.. 

Meele i\ Brannan. 282. 

Stephens r. KIwall, 'Mti, ;J74. 
I ■ •■■ Myers, 221. 

Mot:-ou r. Faxon. 41fi, (J.'jo 
I S[even« v. Jeauorke, 201. 
' -; '■. SampMin, 2S2, 

Stevenson f. Newnhum. IGl. 

' ' — '"■ Watwm, 121, 

Steward f. Younj.', -U 7 

Stewart r. Wyoming R.nohe Co., 

J Stikeman r. DawNon, .18 
I Stone t'. Hyde. 6<J2. 
I Storey v. Anhtou. 89, fil2 
I Strict r. Union Bank, lU' 

Stuart i: BcII. 277. 
I SttirireH r. Bridjfman, 4->il 
fi.iS. ' 

I Sullivan r. Creed, .>20. 

I '" '■• Spencer, Uti. 

c. Waters, iV2 

Sutton r. Town of \Vh 

im. '""'' 

Swann '■. Fhillipw, ;ni. 

Sweeney c. Cfwte, 332, 334. 

■ ~^*'0^d Colony and Newport 

Swift c. JewHbury, 311, 
Swinfen 1. Baeon, 4U!I. 
Swire /■. Franeiw. i)7, 314 
Sykes r. Sykts, 321 




Taff Vale Rail, r. Amalgamated 

Qttc. of Railway ServaatB, 98. 
Tandy v. Westmoreland, 116. 
TaplinK r. Jones ■<3'>. ^^l- 
Tarini Charan Bose r. Debnrayan 

Mifltri, 646. 
Tarleton v. McGawley, '241. 
Tarry r. ABhtou, SSS, 666. 
Tasmania, The. 490. 
Tattan v. O. "W. Rail. Co., 548. 
Taylor r. Aa»,ton, 29.5, .'JOO. 

V. Greenhulgh, S2. 

r. M. S. k L. Rail. Co., 

5.51, 533, 558, 560. 

V. Newman, 178. 

Terry v. Hutehinson. 237, 238. 
Tharsis Sulphur Co. c. Loftus, 

Thoinaa r. Bradbury, Agnew & 
Co., l6L>, "264. 

r. Quartermaine, 105, {§§, 

123, 17-2, o^y, iJS", 589, 

V. Sorrell, :189. 

V. Williams, 198. 

V. Winchenter, 519. 520, 

562, 664. 
Thompson i: Brighton, Mayor of, 

.-. Oibson, 44't. 

■ V. London County Coun- 
cil, 197. 

v. RoH8, 237- 

Thomson v. Clanmorris, Lord, 215, 
VTiorley's Cattle Food Co. r. Mas- 

Ham, 198, 318. 
Thorogood r. Bryan, 482. 
Thorpe v. Brumfttt, 426. 
Thruaaell r. Handyaide, 171, 174. 
Tidman I'. AinsUe. 261. 
Tillett f. Ward, oil, f 10. 
Timothy v. Simpwn", 227. 
lipping r. St. Ilelen'a Smelting 

Co , 421. 
ToU V. North British Rail. Co., 

462, 491. 
Tod-Heatly p. Benham, 419. 
Todd r. Flight, 444. 654. 
Tollit I'. Sheretone, 503. 
Tompson /'. Duahwood, 257. 
Tozeland v. Went Ham Union, imi. 
TozertJ. Child, 129. 344. 
Traill r. Baring, 299. 
Taberville r. Savage, 22 1 . 

r. Stamps, 80, 514. 663. 

Tucker v. Linger, 366. 

Tuff «. Warman, 473, 478, 489, 

Tul'lidge 1-. Wade, 194, 235. 
Tunoey r. M. Rail. Co., 102, 6i;(. 
Turner r. Ambler, 32;l. 

V. Green. 301. 

V. Ringwood Highway 

Board, 414, 418. 
V. S. P. & D. Rail. Co., 


p. StallibrasH, 549. 551. 

Twomley v. Central Park R. R. 

Co., 494. 
Twycro§8 r. Grant, 66. 67. 
TyrriDgham'rt Case, 403. 

Udell V, Atherton, 290. 
Underwood r. Hewson, 140. 
Underwriter, The. 159, 160. 
Union Credit Bank :. Mersey 

Dockn and Harbour Co., 368, 

Union Credit Bank r. N. & S. 

Wales Bank. 371. 
Union Pacific Rail. r. McDonald. 

Union 8. 8. Co. r. Claridge, S4. 
UfiiU r. Hales, 280. 

Vallancef. Falle, 201. 
Vandenburgh r. Truax. 37, 609. 
Vaapor v. Edwordtt, 403, 409. 
Vaughan r. Menlove, 451. 452. 
r. Tatf Vale Rail. Co.. 

134, 6l>8, 515, 663. 
Vegolahn f. Guntner, 152, 333. 
Vernon f. Keys, 293. 
Virarfl f. Wilcockfi, -51, 246, 247, 

Victorian Rail. CommiBsioners r 

Coultas, 52. 
Vin&yab Di»&kar r. Biii Itcha, 616. 
Viranna r. Naguyyah, 610. 
Vithoba Malhferi r. Corfteld, 615. 
Vizetelly w. Mudie's Select Library, 

LU\., 256. 





Waite r. N. E. Rail. Co., 4H6. 6.59. 
Wakelin i . L. & S. W. Rail. Co 

■*«, 457, 464, 480, 657. 
Wakeman c. RobinMoo, 1 in 
Waldock r. Wiofield, 84. 
Walker v. Brewster, 424. 

t . Cronin, 3^9. 

<■- Needham, 580. 

• and Sm c. HodffHon, 267. 

Wallis f. Harrifon, 390, 
Walnh t\ Wliiteley, 172, 587. 
Walter v. aelfe, 4J0, 651, 052 
Walters r. Green, 197. 
Wanddworth Board of Works c. 

United Telephone Co. , S-'iH 
Waulecs r. N. E. Kail. Co., 401 

464, 656, 660, 
Ward V. Hobbe, 2!*. 

V. Lloyd, 207. 

Warlow ('. Harridiin, 297. 
Warner c. Riddiford, 225, 
Warr&Co. r. L. C. C., 38'J. 
Warren i: Brown, 423, 421). 
Warwick Tyre Co. i: New Motor 
&c. Co., 321. ' 

Washington R. R. Co. c. McDade 

WttBon r. Walter, 280, 636. 
Watkin r. Hall, 261, 634 
Wattv. Watt, 187. 
Weare, Re, 2^2. 
Weaver r. Ward, 146. 
Webb r. Beavan, 249. 

r. Bird, 427. 

Weblin 1. Ballard, ^H7, 590. 
WednoHbury Corporation f. Lodge 

Holea Colliery Co., 192. 
Weems r. Mathieson, 106 
Weir r. Bell, 290. I 

Weld.Blundell v, WolseW, 365. 
Weldon v. De Bathe, 60. i 

V. Neal, 217. ^ 

V. Winslow, 59. 

Welfare v. L. & B. Rail. Co., 535. 
Wellock V. Constantine, 207. 
Wellfl f. Abrahams, 206, 207. 
Wenraan v. Ash, 257. 
Wenuhak i\ Morj^an, 195, 257. 
West f. NibbB, 402, 408. 
West V. Sraallwood, '228. 
Wefltern Bank of ScoJand i'. Addie 

97, 295, 314. 
Weot Ham Central Charity Board 
V. E. London Waterworks Co.. 
363. ' 

P.— T. 

I We«t lieiffh Colliery (Jo. v. Timni- 
j oliffe & Hampson, 190. 

Wect London Oonimereial Bank v 
I KitsoD. 293, 
Whalley r. L. & Y. Rail, Co., 180. 
Whatman *. PearHon, 89, 61 ■> 
Whitb^.urue r. VVillianw, 2377 
White I . Franoe, 525. 

r. Jameson, 444, 654. 

'. Lang-, 183. 

— r. MclJin, 318. 

1'- Spettiftue, 205. 

& Co. c. Credit Reform A«- 

«o(-iatioji, 286. 
Whiteley v. PrpptT, 534. 
WhitHeld r. 8 E, i;^i, Co., 61. 
Whithairi r. K. rahaw, 1!(2, 195 

199, 668. 
Wbitmons >: Stanford, 507. 
Whittaker, Ex parte, 292. 

"r; '■■ ticarborouifh Post 

Newspaper Co., 286. 
Whitwham r. Westminster Brymbo 

Coal and Coke Co., 192. 
Wieks V. Fentham, 323. 
Wiggett r. Foi. 106. 
Wigsoll f. School for Indigent 
, Blind, 199. 
; Wilbrahara t: .Snow, 366. 

Wild f. Waygood, 84, 588. 
, WUkes c. Hungerford Market Co 

415, 650. 
, WiikiuM r. Day, 410. 
I Wilkinson v. Uounton, 54. 

- "n~^ " ''■ Haygarth, 379. 

I WiUettsc. Watt, .5h7. 
Williams f. Birmingham Battery 
and Metal Co., 106 
I 171. 

I r. East India Co., 663. 

I f. G, W, Rail. Co., 43 

I 461. 

j V. Jones, 90. 

f. Smith, 281. 

Williamson v. jUlison, 29 


■ r. Freer, 255, 2S;i, 639 

Willis r. Maelachlan, 119. 
Wilson i\ llarker, 385. 

■ r. McLaughlin, 370. 

r. Merry, 102, 105. 

f. Newberry, 504, 506. 

f. Reed, 188. 

f. Ttimraan, "8. 

r. Waddell, 502. 

Winkfield, The, 381. 
Winsmore v. Greenbank, 235. 



Winter c. Brockwell, 392. 
Wititerbottom v. Derby, Lord. 41.^, 

r. Wright, 529, 661, 

Wood t'. Durham, 286. 

V. Leadbitter, 390, 391, 392, 


f. Wuud, 421, 653. 

». Woad, 128. 

WoodhouH r. Walker, 68, 362. 
Woodley ». Metr. Wst. Kail. C!o., 

Woodward p. Walton, 235. 
Worth r. Oilling. 512. 
Wren •-. WeiM. 317. 

Wright I'. Leonard, 61. 
r. Ramnoot, 359. 


Yarborough r. Bank of England, 

Tamionth r. France, 170, 171, 530, 

587, 589, .^93. 
Yatefl r. Jack, 429. 
Yewena f . Noakes, 81 . 
Young r. Hoffmann Manufacturing 

Co.. 102, 105, 1116. 

( xliii ) 


12 Ann. pi 40 FAOB 

100, -1 67 *0i 

., 102,-76 :;;; ei 

H 134,-11 241 

30 1:7 — -9 222 

Eclw. II. .181 244 

7 Edw. III. 11,1, _ 67 224 

*8 20,-. 8 'M 

2 Ben. IV. 18,— 5 384 

11 1-2,— 2 "13 

47,-21 239 

75, — 16 153,620 

19 Hen. VI. .13, — 68 «' 

4,5,-94 511 

• 60,-10 233,384 

" 26,- 9 :: 64 

22 14,-23 241 

31 154 

.12* 239 

33. .,■; _ j2 240 

36 .jiij— 8 362,408 

?'■ 37,-26 :;:: 222 

39 7 _ [o 405 

6 Edw. IV. 7,-18 391 

:; », - 18 .■;: H5 

I 24,-31 .... "5 

'> 23,-41 241 

,9 35,-10 ; 175 

12 13 _ 9 400,405 

14 7,-13 386 

15 1,- 2 ;;::; 241 

17 1 62 

17 :i, — 2 36 

20 11,-10 ;::: 222 

21- 7(1*,- 9 511 

7 Hen, VII. 22,— 3 406 

»■ 7, _ 4 374 

•5 10,-18 241 

16 2, _ - 433 

21 27,— ,i 386 

28,— 145,175,405 

39,-60 146,175 

■ ■ 854 177 

86*,- 19 <05 

27 39,-49 ■•»5 

12 Hen. Vm. -1 386 

27 27,-10 176 

414,416, 6.50 

( xhv ) 


p. 64, note («). As to the necfiwity for the fear being reawnable, see 
Tht Riget, [1912] P. 99, 107, where the authority of Dulim f. iVhitt is 
aooepted without doubt- 



■'Hi; law of Torts (a) 

""options. All »e™,^r„f ■ ""-^ "" object to si,„il„ "°- 
- under a general dlto: 7'?" -""-woaltT 
^" "-:„ no hurt withou L :, :? ""''^ "<">'"'-" to 
P'oc^o extent of the dutv ?'" ^ "■^^'o- The 

-«- Of the .■eco,„,L,':t;:,::f "• "-' -^'^ -^ 

">o nature of „,„ „.,, ^";P';on«. vane, according to 
««''.«^'"'-ty of the ,,rinoinlo " *' ""' "f"^' the 

-ne^ of n-atterJah::!^ -- ''""' "'« -«ni 
«nd the eonsiderablo though Ir'^"'! '"'•^' »- -ado, 
i°o,vn kinds of contracts. ,,,!" "T"' "' '''"-''„ 

L W " » o mm a=ciclo„t ,1 ^ »" 

( (") It » o ni„„ a=ciclont h. . 
pa" I our currnnt 

'■• — r. 

"■<- " " 'roely used. 


by Ulpiuii ill his familiar statciiipiit of tlii' coiiinmnd- 
montB of tho law. prowrvud in the introductory chapter 
of JuBtiniann In»litiite»: " luris pnieceptii mint haee: 
honeste vimf, alteriini noii lacdere. siiuni euique 
tribueri'." Without endeovourinp to force on I'lpian or 
his Stoic nianters a more exact meaning; than they had, 
we nioy iind in his words a broad Nummar>' of a lawful 
man's duties which is founded on the |M'rmancnt elements 
in luinuin affairs, and is therefore still true and useful. 
Honeula riv n- is to lead a life free from crime and 
scandal, fiuum euiqur Irihiirre is, literally, to give every 
man his due; that is, in fact, not to encroach or make 
unfounded claims on what belongs to others, and to per- 
form whatever one has legally bound oneself to perform. 
AHeriim tioti laedere is to forbear frouL irillicting unlawful 
harm in gc^nenil. As the Euglisli Church catechism has 
adapted UlMian's words, it belongs to my duty towards 
my neighbour ' To hurt nobody by word nor deed: To be 
true and just in all my dealing" (')). But neither the 
Latin nor the English phrase is clear enough to bring out 
tho real fundamental distin.ctions implied in the fact that 
«o recognise Torts as forming an individual branch of the 
law. We must briefly specify those. 

The duty 

ia general 

and fixed 








The duty, whatever else it may he. is a duty towards 
our neighbour. Breach of it will entitle some one to 
bring an action for redress. An offence punishable by 
the State may not create any such private right. If it 
does not, it is no civil wrong; and this is in fact the caso, 
with some of the gravest public offences. Also in cases, 
of tort the duty that has been violated is general. It is 
owed either to all our fellow -subjects, or to some consider- 

ed) Cioodricti, Bishop of Ely, 
hy whom this was prolwhly 
framed, van a learned civilian. 

and no other origin has lieen 

DISTINCTION FROM BBEACU >,F CONTHACT. claw of tl...„i, an.l it is Hx<hI by tho k,v u„d the !«« 
ulone. Hm. li... the diflercnco b,Mvo,.„ civil wronRs 
properly so callod, uml of ™nt.a,L It i„ „„, 
right to break one's contract, thougl. in eases of honest 
orror due to the parties' intentions not being elearlv 
expressed or otherwise, or of .lianbilitv pre- 
venting p<.rfon„«„«>, there inaj- be legal liability without 
ony moral blan... But breach of eoiiha.t, wilful „r „ot 
18 the breach of duties which th,. ,,arti,.« have fixed for 
themselves. Duties under a contract may have to b,. 
interpreted or supplemented by artiliciul rules of law 
but th..y cannot be sui^rseded whil,. tlu'ie is any con- 
tract in being. Tl,<. duties broken by tl... eomn.ission 
of civil wrongs are lixed by law. and indcpendeiK of 
the will of (he partii's: and this i. „o even where they 
arise out of circumstances in which the responsible 
party's own act has placed liim(r). Again, these 
general duties are dittcTcnt in other important rc8|,«.tH 
from those which arise out of th,. domestic relations 
although they agr.v with thoni in not depending on tlu! 
will of the parties, for the mutual .luti™ of husbanil 
and wife, parents and eliildren, and the like, are strictly 
personal, and moreover only part of them can be or is 
dealt with at all by positive rules of law. Down to 
modern times they w.'re regarded in this countrv as 
not belonging to the ordinary jurisdiction of t<.mpoinl 
courts ; marital and parental authority were incidentally 
recognised, but matrimony and matrimonial causes «ere 
"spiritual matters." 

Wc shall not find laid down in authorities any Hirtonr 
such broad principles as are above indicated; nor is ther- "4"™'* 

of Ecf^lisb 
(«) The claw of ca«„ i„ ,rhich detain „, here. It U c„„,iderod 2^"*°" 
the substance of the duty arise:* =- *>-- •- ■ • .... - ""^ 

out of contraft U too ppculiap tu 

in the last chapter of this boLtlt. 



anything •urpriiiiig in this. The anciont common Inw 
know nothing of largo claMifications founded on the »ub- 
•tantirc nature of what wai in iwuo. There wore forni-^ 
of action with tlieir appropriate writ* and proeeM, and 
authorities and traditions whonoo it was known, or in 
theory was capable of being known, whether any given 
set of facts would lit into any and which of these formB. 

I In early times it was the existence of a remedy in the 
King's Court, not the failure to provide o remedy for an 
apparent wrong, that was exceptional. No doubt the 
forms of action fell, in a manner, into natural closscs or 
groups. But no attempt was made to discover or iipply 
any general principle of arrangement. In modern times, 
that is to say, since the Hestoration, we find a certain 
rough classification tending to prevail (d) . It is assumed, 
rather than distinctly asserted or established, that actions 
maintainable in a court of common law must bo either 
actions of contract or actions of tort. This division is 
exclusive of the real actions for the recovery of land, 
already becoming obsolete in the seventeenth century, 
and finally abolished by the Common Law Procedure 
Act, with which we need not concern ourselves : in 
the old technical terms, it is, or was, a division of 
personal actions only. Thus torts are distinguished from 
one important class of causes of action; and the distinction 
is practical and reasonable, for the increased importance 
of contract in modern times has made it possible to set 
questions arising out of contracts against those not arising 
out of contracts with a fair appearance of equality. 
Torts, on the other hand, are distinguished in the modem 
law from criminal olfenccs. In the mediseval period the 
procedure whereby redress was obtained for many of the 

(d> Appendix A. 

'-""''"'*■ •'•KHMWOUX.V. 

"«»"'« who.,, j„,^„„:™'"»';''--,er, the defendant 
."•:'- and priva... j^J'^J '° W " ""o to tj.o tin^ 

""•'ou, act. wl,ic,,. n, "° ; """'""' ^neo. There are 

"". "10 injured paru ::::"■ r ;\""' ■"" »'■ "'« °"">' 

""•""«! provocation bolCto' d ff '" ""' ""' ""^ "- 
- KU.ded b^ different ZVllT""'^ J"'«iiotions, and 
"'0 «"bjoct-mattor of cl '^ 'S,''"''- '^'"'' ''«'»''» 
'^™"' We„, Of the cro. T^" f ^ - distinguished 
,-'•'' derived wholly fr„„" t^^ ' "'« ""■» "-d it- usage 

Ffaeref„rothclawofTort«;. ^"d.catnro Acts. 

'""<« within which tho^ "'^'''''««nly confined by the 

."-'-o- Bivera and XC^; "^T" '"^ i-'" 
'-«" dealt with by other co't 7 °^ """'*'°'' h"™ 

I'^ooedure and with their o '" """'' °"'' ^"'""n of 

;''°"^-«"'^idethecX;vr*''"'"^^- ^"^ '- 

'■'--■fictions founded upoV" "':' "'"'"' "»'' «" 
-nunon «nderata„din/„rwo?r'h T"'"' '" ""' 
'"ong, adultery is a wronl "f ■ "''' "^ '™'' » a 
P-aation for saving .ZlifT '" ^'^ » J-' ^-n- 
"fr n.ay be n,ado eoTp I "'"""" '™"»- An 
defaulting truatoe; a dlZ ' f ^'"''?"''" ^"» ">o 
tep^-need against tul^hf J' f"''""'"" '"^^■ 
and payment of reasonable »! '" " " '""''""'d ; 

"^-nst the ship-owner But rr T' '" ""^"^d 
•n each case is „ot a tor Th .'''"* " ^'^"'-'died 
belongs to the law formeriv jZ f """"'""on of trusts 
f^"""; the settWnt of nT .'^ '''^ ^''-eoiiora 

of matrimonial causes between 


husband and wifo to the law formerly peculiar to the 
King's Ecclesiastical Courts; and the adjustment of 
salvage claims to the law formerly peculiar to the 
Admiral's Court. These things being unknown to the 
old common law, there could be no question of tort in the 
technical sense. 

It is to be observed, however, that in every such case 
there is a real distinction from the torts known to the 
Conmion Law . The law of trusts is concerned with duties 
created by the will of the parties, and the law of husband 
und wife, as we have said, with a strictly personal relation. 
The law of salvage belongs by its character to the depart- 
ment of what is now called quasi-contract or constructive 
contract, w hero duties analogous to those of a promisor arc 
imj>osed, for reasons pf convenience and equity, on a 
person who has not made any promise. 






The general principle that one must not do unlawful 
harm to one's neighbour will of course not tell us in 
detail what harm is unlawful. It may now be useful, 
accordingly, to examine what are the leading heads of 
the English law of torts as commonly received. The 
civil wrongs for which remedies are provided by the 
common law of England, or by statutes creating new- 
rights of action under the same jurisdiction, are capable 
of a threefold division according to their scope and 
effects. There are wrongs affecting a man in the safety 
and freedom of his own person, in honour and reputation 
(whirh, as men esteem of things near and dear to them, 
come next after the person, if after it at all), or in his 
estate, condition, and convenienoc of life generally: the 
■word estate being here understood in its widest sense, as 
when we speak of those who are " afflicted or distressed 
in mind, body, or estate." There arc other wrongs which 


affect specif ■ rights of possession and proix^'ty, or rights 
in the nature of property. There are yet others which 
may affect, as the case happens, person or property, either 
or both. Wo may exhibit this division by arranging the 
familiar and t^'pieal species of torts in groups, saying 
nothing for the present as to the various possible grounds 
of justification or excuse. 

Group A. 
Personal Wrotigs. 

1. Wrongs affecting aa£cty flttd froodoni of tlie person: 

Assault, battery, false imprisonment. 

2. Wrongs affecting personal P^atio ns i.ij^tho Luuily: 

Seduction, enticing away of servants. 

3. Wrongs affecting reputation: 

Slander and libel. 

4. Wrongs affecting cstflie,.gejicrally: 

Deceit, slander of title, fraudulent competition 
by colourable imitation, &c. 

Malicious prosecution, 

Kxtortion or injury by intimidation of third 
persons, procurement of wrongful acts, con- 
spiracy, &c. 

Group B. 
Wrongs to Possession and Properly. 

1, Xtfig p^ s: (a) to land. 

(b) to goods. 
Conversion and unnamed wrongs cjusdem 

Disturbance of easements, &c. 

2. TntAifpi-nnnft with rjglita, analngniiB tn property, SUCh 

a« private franchises, patents, copyrights, trade- 
marks. , 


WroDgB to 


Gboup C. 
]JJ™^ Wrongi to Person, Estate, and Property generally. 

porwiKUld 1 ..T . 

pniperty. '■• IMmflnnce. 

2. Nffgligrnrp 

3. T^tfBch of absolute dutics_si>c^iUly attached to the 

occupation of fixed property, to tho ownership 
and custody of dangerous things, and to the 
exercise of certain public callings. This kind 
of liability results, as will be soon hereafter, 
partly from ancient rules of tho common law 
of which tho origin is still doubtful, partly 
from the modern development of the law of 

The general rule of law that a master is answerable 
for the acts and defaults of his servants in the course 
of their employment operates to extend liability under 
all these heads in various degrees. Group C. would be 
insignificant without it. 

All the acts and omissions here specified are un- 
doubtedly torts, or wrongs in the technical sense of 
English law. They are the subject of legal redress, 
and under our old judicial system the primary means 
of redress would be an action brought in a common 
law court, and governed by the rules of common law 
pleading (e) . 

Character The groups above shown have been formed simply with 
ful aoto, reference to the effects of the wrongful act or omission. 
aw'seyaS ^*'' '''®y appear, on further examination, to have certain 

(«) In Bomo oases tbo really 
effectual remedies were adminis- 
tsred by the Coart of Chancery, 
bnt only as auxiliary to the legal 

right, vhicfa it was often neces- 
sary to establish in an action ai 
law before the Court of Cbaaoery 
would interfere. 


distinctive eliaractcrs with rofercnco to the iiatuie of tlic 
act or omission itself . In (trnnp A , g nnt^mlly gp pnlfii,^. Wilful 
tWjJiQllKia. wilful or iianton. Either the act is intended '"™*'' 
to do harm, or, being an act evidently likely to cause 
harm, it is done with reckless indifference to what may 
befall by reason of it. Either there is deliberate injury, 
or there is something like the self-seeking indulgence of 
passion, in contempt of other men's rights and dignity, 
which the Greeks called v^fis. Thus the legal wrongs 
are such as to be also the object of strong moral con- 
demnation. It is needless to show by instances that 
violence, evil-speaking, and deceit, have been denounced, 
apart from any secular legal prohibition, by righteous 
men in all ages. If any one desires to be satisfied of 
this, he may open Homer or the Psalter at random. 
What is more, we have here to do with acts of the sort 
' that are next door to crimes. Many of them, in fact, 
are criminal offences as well as civil wrongs. It is a 
common border-land of criminal and civil, public and 
private law. 

IB-Grpup B. this elcpM!nt.i8 at iitat sight absent, or at Wrougs 
any rateindifCerent. Whatever may or might be the JJ23' a. 
case in other legal systems, the intention to violate <»>™Mted 
another's rights, or even the knowledge that one is blame, 
violating them, is not in English law necessary to 
constitute the wrong of trespass as regards either land 
or goods, or of conversion as regards goods. On the 
contrary, an action of trespass — or of ejectment, which 
is a special form of trespass— has for centuries been a 
common and convenient method of trying an honestly 
disputed claim of right. Again, it matters not whether 
actual harm is done. " By the laws of England, every 
invasion of private property, be it ever so minute, is a 



trespass. No iimii cun set his foot upon my ground 
without my liconw, but ho is liable to au action, though 
the damage Ix' nothing ; which is proved by every 
declaration in trespass, where the defendant is called 
upon to answer for bruising the grass and even treading 
upon the soil"(/). Nor is this all: for dealin4_.with 
another man's goods without la\y(ul authority, -buLjiader 
ib-fi J)fineit and even reaaonablc belief that tho-dcaling 
'sjftwf ul, .mux be an aetjpftable wrong . notwithstanding 
the-ianoccnco of the mistake (<;) . StiU,.kss. will good 
intmtipna afford .aafispuse. I find a wateh lying in the 
road: intending to do the owner a gooil turn, I take it 
to a watchmaker, who to the best of my knowledge is 
competent, and leave it with him to he cleaned. The 
task is beyond him, or an incompetent hand is employed 
on it, and the watch is spoilt in the attempt to restore it. 
Without question the owner may hold me liable. In one 
word, the duty which the law of England <'nforccs is an 
absolute duty not to meddle without lawful authority 
with land or goods that belong to others. And the 
name principle applies to rights which, though not exactly 
property, are analogous to it. There are exceptions, 
but the burden of proof lies on those who claim their 
benefit. The law, therefore, is stricter, on the face of 
things, than morality. There niaj , in particular •'■- 
cumstanccs, bo doubt what is mine and what is My 
neighbour's ; but the law expects me at my peril to 
know what is not mine in every ease. To some extent 
this must obviously be so, lest wrong-doers should go 
scot-free under cover of pretended ignorance. It may 
seem unreasonable, at first sight, to expect a man to 

(/; Per Cur. Jinlicit v. Cur- 
ri„glon, 19 St. Tr. 1066. 

(.g) Se.-* J/ottinl V. FotcUr, 
L. K. 7 H. L. 757, 4« h. J. 
Q. B. ion. 


know lit his peril what things uro liiH iioiglibour's; but 
it is not evidently unreasonable to expect iiini to know 
what is his own, and tins is only the statement of tho 
same rule from tho other side. The prominence of tiie 
rule in tho Common Law, and in this department of it 
more than unotlier, depends on historical causes to be 
mentioned presently. 


In Criffnp r; till* ftptR or omisbious complained of have Wrongs of 
a kind of intermediate character. Thoy are not as a rule ^^™j^d 
wilfully or wantonly harmful; but neither are they oniiemon. 
morally indifferent, save in a few extreme eases under 
tho third head. The party has for his own purposes 
done autrf, or brought about a state of things, or brought 
other people into a situation, or taken on himself the 
conduct of an operation, which a prudent man in his 
place would know to be attended with certain risks. A 
man who fails to take order, in things within his control, 
against risk to others which he actually foresees, or which 
a man of common sense and competence would in Iiiw 
place foresee, will scarcely be held blameless by the moral 
judgment of his fellows. LegftlJi^bilitj'. f or negligence 
ftnd similnr Mrnngft„cQ£r.eHpnnds iipprovimately to-the 
iUlliaL£ca:8U)CP.,pn this, .default. The ccimission 
of something in itself forbidden by the law, or the omis- 
sion of a positive and speeiftc legal duty though without 
any intention to cause harm, can be and is, at best, not 
more favourably considered than imprudence if hariii 
happens to come of it; and here too morality will not 
dissent. In some conditions, indeed, and for special 
reasons which must be considered later, the legal duty 
goes beyond the moral one. There are cases of this class 
in which liability cannot be avoided, even by proof that 
tho utmost diligence in the way of precaution has in fact 



been uaed, and yet tho party liable has done nothing 
which the law condemns (A). 

Except in these cases, the liability springs from some 
shortcoming in tho care and caution to which, taking 
human affairs according to the common knowledge and 
experience of mankind, wo deem ourselves entitled at the 
hands of our fellow-men. There is a point, though not 
an easily defined one, where such shortcoming gives rise 
even to criminal liability, as in the case of manslaughter 
by negligence. 

Wo have, then, three main divisions of tho law of 


of torta to torts. In one of them, which may bo said to have a 



quasi-criminal character, there is a very strong ethical 
element. In another no such element is apparent. In 
tho third such an element is present, though less mani- 
festly so. 

The apparent absence of intelligible relation to moral 
conceptions in the second group may well seem at first 
sight to stand in the way of ascribing rational unity to 
our law of torts as a whole. 

A right of property is interfered with "at the peril 
of the person interfering with it, and whether bis 
interference be for his own use or that of anybody 
eke" (t). 

And whether tho interference bo wilful, or reckless, or 
innocent but imprudent, or innocent without imprudence, 
the legal consequences and the form of the remedy are for 
English justice the same. This may appear inelegant if 
not unjust. 

(A) How far sucli a doctrine 
can lie Uieoretically or llistori- 
callj juitified ia not an open ques- 
tion for Enflrliflh cnorte of justice. 
for it hai l>een explicitly affirmed 

by the House of Lords: RylandM 
1. Fletcher (1868), L. B. S 
H. L. 330, 37 L. J. Ei. 161. 

(i> Lord O'Hagan, L. R. 7 
H. L. at page 799. 



Tho truth is that we havo hero one of the historical 
curiosities of English law. Formerly there was a clear 
distinction in the forms of procedure (the only evidence 
we have for much of the older theory of the Iftw) between 
the simple assertion or vindication of title and claims 
for redress against spcciBc injuries. It is true that 
the same facts would often, at the choice of the party 
wronged^ afford ground for one or the other kind of claim, 
and the* choice would be made for reasons of practical 
convenience, apart from any scientific or moral ideas. 
But the distinction was in itself none the less marked. 
For assertion of title to land there was the writ of right; 
and tho writ of debt, with its somewhat later variety, the 
writ of detinue, asserted a plaintiff's title to money or 
goods in a closely corresponding form (it). Injuries to 
person or property, on the other hand, wore matter for 
the writ of trespass and certain other analogous writs, 
and (from the thirteenth century onwards) tho later and 
more comprehensive writ of trespass on the caae (l) . In the 
former kind of process, restitution is the object sought; 


of fonnsof 

Writs of 
right and 
writs of 
or punish- 

(A) The writ of right (Qlan- 
vill, Bk. i. c. 6) rana thui: " Rex 
vicecomiti salutem: Praecipe A. 
quod sine dilationo reddat U. 
unani hidam torrac in villa ilia, 
onde idem B. queritar quod prae- 
diotus A. ei deforceat: et nisi 
fecerit, aummono eum," &c. The 
writ of debt (Bk. x. c. 2; thus: 
"Bex vicecomiti aatatem: Prae- 
cipe N. quod ioste et aino dila- 
tione reddat R. centum marcaa 
qoas ei debet, ut dicit, et undc 
queritnr quod ipse ei iniuste de- 
forceat. Et nisi fecerit, sum- 
mone eum," &o. The writs of 
covenant and account, which 
were developed later, also con- 
tain the characteristic words intte 

el aitte dilatione, 

(I) Blackatone iii . 122 ; F. N. B. 
02. The mark of this class of 
actions is the conclusion of the 
writ contra paeem. Writs of 
assize, including the assise of 
iiuiianco, did not so conclude, but 
show analogies of form to the 
writ of trespass in other respects. 
Actions on the case might be 
founded on other writs besides 
that of trespass, e.g., deceit, 
which contributed largely to the 
formation of the action of as- 
sumpsit. The writ of trespass 
itself is by no means one of the 
most ancient. See F. W. Maitlond 
in Harv. Law Rev. iii. 217-219. 



in tho latter, sonio redress or compensation whloh, there is 
great reason to believi', was originally understood to bo a 
substitute for private vengeance (m). Now the writs of 
restitution, as wo may coUoctivelj' call them, were 
associated with many cumbrous and archaic points of 
procedure, exposing a plaintiff to incalculable and 
irrational risk; while tho operation of the writs of penal 
redress was by comparison simple and expeditious. Thus 
the interest of suitors led to a steady encroachment of the 
writ of trespass und its kind upon the writ of right and 
its kind. Not only was the writ of right first thrust into 
tho background by tho various writs of assize and entry 
— forms of possessory real action whicli are a sort of link 
between the writ of right and the writ of trespass- and 
then superseded by the action of ejectment, in form a pure 
action of trespass ; but in like manner tho action of 
detinue was largely supplanted by trover, and debt by 
assumpsit, both of those new-fashioned remedies being 
varieties of action on tho case (n) . In this way tiu- dis- 
tinction between proceedings taken on a disputed claim 
of right, and those taken for the redress of injuries 
where tho right was assumed not to be in dispute, 
ibecame quite obliterutod . Tho forms of action wore the 
■sole embodiment of such legal theory as existed ; and 
therefore, as the distinction of remedies was lost, tho 
distinction between the rights which they protected was 
lost also. By a scries of shifts and devices introduced 
into legal practice for tho ease of litigants a great bulk 

(m) Xot rctaliutiun. Karly 
Germanic law ahowH no trace of 
retaliation in the tttrict wnao. A 
passage in the introduction to 
Alfred's laws, copied from the 
Book of ExodOa, h tui real exerp- 

(n) For the advantages of auing 

in case over the -older form^ of 
actions, see Blackstone, iii. 1S3, 
155. The reason given at p. 152 
for tho wager of law (as ta which 
see Co. Litt. 295a) being allowed 
in debt and detinue is some one's 
idle guess, due to mere ignoraneo 
of the earlier history. 


of what really belonged to the law of pro|ioity was tniiis- 
ferred, in forensie usaRe and thence in the traditional 
habit of mind of EnRlisli lawyers, to the law of tort». 
In a rude state of society the desire of vengeance is 
measured by the harm actually suffered and not hv any 
consideration of the actor's intention; heniv the archaic 
law of injuries is u law of absolute liability for the dir<«t 
consequences of a mans acts, tempered only bv partial 
lexceptions in the hardest cases. These archaic" ideas of 
absolute liability made it easy to use the law of wrongful 
injuries for trying what were really questions of absolute 
right; and that practice again tended to the preservation 
of these same archaic ideas in other departments of the 
law. It will be observed that in our early forms of action 
contract, as such, has no place at all (o); an additional 
proof of the relatively modern character both of the im- 
portance of contract in practical life, and of the growth 
of the corresponding general notion. 

We are now independent of forms of action. Tres,)a8s R.tioM. 
and trover have become historical landmarks, and the ^^^^ 
question whether detinue is, or was, an action founded ^"^ 
on contract or on tort (if the foregoing statement of the '™^'"" 
history be correct, it was really neither) survives only 
to raise diiricultics in applying certain provisions of tlie 
County Courts Act as to the scale of costs in the Superior 
Courts (p). It would seem, therefore, that a rational 
exposition of the law of torts is free to get rid of the 
extraneous matter brought in, as we have shown, bv the 
practical e.vijscncy of conditions that no longer exist! .At 

(o) Except what may be im- the contract: F \ B H»- 

plied from the technical rule that Blaclutonc, lii. 15fl. 

the woTddeiH was proper only (p) Br,M v. JMrrl (1878) 

tn an action for a stun of money 3 C. P. Div. .?«9. 47 L J {' p 

betwcon the original parties to 670. 


the (amo time a certain amount of excuse may be made 
on rational groundi for the place and function of the law 
of trespass to property in the English system. A man 
can but seldom go by pure unwitting misadventure 
beyond the limits of bis own dominion. Either ho knows 
he is not within his legal right, or he takes no heed, 
or he knows there is a doubt as to his right, but, for 
causes deemed by him sufBcient, he is content to abide 
(or perhaps intends to provoke) a legal contest by which 
the doubt may bo resolved. In none of these cases can 
he complain with moral justice of being hold to answer 
for his act. If not wilfully or wantonly injurious, it is 
done with some want of due circumspection, or else it 
involves the conscious acceptance of a risk. A form of 
procedure which attempted to distinguish between those 
possible eases in detail would for practical purposes 
hardly bo tolerable. Exceptional oases do occur, iind 
may be of real hardship. One can only say that they 
are thought too exceptional to count in determining the 
general rule of law-. From this point of view wo con 
accept, though we may not actively approve, the inclusion 
of the morally innocent with the morally guilty trespasses 
in legal classification. 

•*°^Ht Wo may now find it interesting to compare the Honmn 

Rumanob- System with our own. There we find strongly marked 

«!?5»(Wo. t*"" distinction between restitution and penalty, which 

was apparent in old forms of action, but became obsolete 

in the manner above shown. Dr. Moyle(g) thus describes 

the specific character of obligations ex delicto : — 

" Such wrongs as the withholding of possession by a 
defendant who I "na fide believes in his own title arc not 
delicts, at any ri... in the specific sense iu which the term 

{;) Iu Us cilition uf the Institatee, note to Bk. iv. Ut. 1, p. olO, 4th ud. 


from an obU^noVjZlZ " t,''""""' """« 

'.ad the « „ ' ; !" t" '" "'''^'' ■"• """''' '■"- .In 
contracted w th 1 1 l" ^T'""'' ''"' '''•'-- - 

-0 ind^r^lj jy''""' "•'''»•* »"- f-„. then. 
•' ' "'"* '*<^.'/ <«"• redresml are pn„i: 

«ider and answers to If ' "* """"'"^ '" "'-'' """■ 
/••unlawful intont, ^1 ":^ ««T"'- ->n'f.v >.,v 

ThoruleTsIialld ; '"^. ™"' ""« "-' ^o another. 

ehe n,ea.ur„Tl':5;: it ''™"^''^- '" ''^«'"' 

the case in hand The H„„ '""'""''™ ™ ''"'■ "' ■ 

^oellentl, illustrated h, th^^o Lt;:' Cdt ' ' 
Aquiliam," a storehouse o' »^J ^ '"'?''"' 

'he principles a« subs ntXthe""" ""' '°°' '"^ ^'■"'■ 
".uoh „>ore attention at h! hi .;T""^ """■"'■*' 
'hanithasrecoived. I isti" /.""'"'' '""^•"" 

;'-. was built u,. on'V^lda:- :rarifirr 
I'.v no means unlike our own • the e! '''"^'' 

"ivili-d law stands instead „fa„v'""""'" "' ""• 
«hich was still roco.„i.ed bv tb T "" '■'^"'"'"'°" 
Tables. If then w^"l' ' '^' '*"' "* "'« Twelve 

ot rights of ; oje r™ r"^" "«' E"^"'"'' treatment 
1 • 1 • , "pi-i'.v as uems accounted fm- l>,. i- 

"rr' -"- - «"" ">- the aoman'it^r:; 



f if 




delict agroot very well with the conception that appear* 
really to underlie the English law of tort. Liability for 
delict, or civil wron)j in tlii' strict acniia, is the result 
cither of wilful injury to others, or wanton disrcfifard 
of what is duo to them (doliu). or of a failure to observe 
due care and caution which has similar thoufth not 
intended or expected consequonccs (culpa)- In the 
Common Law wo have, apart from the law of treapass, 
an exceptionally strin^^ent rule in certain cases whore 
liahility is ottached to the bofallinjf of harm without 
proof of either intention or negligence, as wos mentioned 
under Group C. of our outline. Such is the case of the 
landowner who keeps on his land an artificial reservoir 
of water, if the reservoir bursts and floods the lands of 
his neighbours. Not that it was wrong of him to have a 
reservoir there, but the law says ho must do so at his own 
riskCr). This kind of liability, too, has its parallel in 
Roman law, and the obligation is said to be not ex delicto, 
since true delict involves either dolm or culpa, but q)iaH 
ex delicto (») . Whether to avoid the difficulty of proving 
negligence, or in order to sharpen men's precaution in 
hazardous matters by not even allowing them, when 
harm is once done, to prove that they have been diligent, 
the mere fact of the mischief happening gives birth to 
the obligation . In the oases of carriers and innkeepers n 
similar liability is a very ancient part of our law. What- 
ever the original reason of it may have been as matter 
of history, we may be sure that it was something quite 
unlike the reasons of policy governing the modern class 

(r) Kyhndi v. Tletcher, L. R. 
3 H. L. 330, 37 L. J. Ex. 161. 

^«) Austin'f perverse and un- 
intelligent eritiiism of tliis per- 
fectly rfttinnal terminology htu 
been treated with far more 

respect than it dewrrea. It in 
true, however, that the applicii- 
tion of the term in the Institutes 
in not quite consistent or com- 
plete. See Dr. Moyle's notes on 
I. iv. 6. 


Of o«« of which ItyUmd, V. Fleicha- (t) i. the type «,d 
leading authority; by ,uch ro«.on», nevertbelew, the rule, 
muit he defended <u p,rt of the modem l.w, if they can 
be defended at all. 

The way. in which a right of action for a tort can s„„^ in our law may be .ummed up in the following 
manner (m): — 

fiMW-.tKt. iiaaftit qt omiBuon (not being merely the 
breach of a duty arising out of a personal relation, or 
underUken by contract) ill .one o£ tlic 
mtmiae-iiutia.ULimia (including interference with an 
abeolute right, whether there be measurable actual damage 
or not), flu2«Mdby A datSMunato person:— 

(a) It may be 4n.aot.iiiludi. witliBUt lawful JMtilic.- 

ti2n,or_£xeusp, js iatsnded by th« agent to cause 
fiHSvinddoe; caass.tJie harm cojaplainwl of. 

(b) It may be an a/^t in .>..lf „^„...,r]f tn Inn . v an 

nmJMJnn nt .p„„;B. u^„^ ^^^^^. ^^^j, eanses 

ham-jiot intaadad Jiy the pfltsonep acting or 

(c) It may be aa_«ct. vml»>in^ ■. ^[,n„|„f^ ^j^-,,, 

(especially rights of possession or property), and sriougiul jyithout regard to the actor's 
intoBtion. or-Jmowladge. This, as we have 
eeen, is afl_MtiMa!,ejyen8io« of the general 
^.O-ffiSCtions which are common to English and 
Roman law. 

(d) It may bo an act or nmii.aj,in (iniinin; hnrm liliiili 

t h f pnr so n an n rting cr.fliuitting.jdid not intend 

«) L. R. 3 H. L, 330. See 
Ch. XII. below. 

la) It may be nortl. while to 
point out that this is not intended 

a« a deflnition of tort, but as an 
iinalytiral elassiiieation of the 
Ijruunds of liability in tort. 



ta.SftBSfi. but might wd atould with diu-dili- 
.gsnsft-haw.foMWJW wd-EKYSPtod. 

(e) It may, \B ipp^'**^ mwa, consist iQfi££ljC»UU ^^^ 

aY ft i Hin j; nr preventing lisu;m which tfesji^'ty 

wak-houiul, ahwlutel; PC within limits, ..tqjufoid 


A apeoial duty of this last kind may be (i) absolute, 

(ii) limited to onswering for harm which is assignable to 

some one's negligence. In some positions a man becomes, 

so to apeak, an insurer to the public against a certain 

risk, in others he warrants only that all has been done for 

safety that reasonable care can do. 

Connected in principle with these special liabilities, but 
running through the whole subject, and of constant occur- 
rence in almost every division of it, is the rule that a 
master is answerable for the acts and defaults of his 
servants in the course of their employment. 

It will now be proper, before enumerating the several 
classes of tort.8, to investigate first the common principles 
of liability, and then the common principles of immunity 
which are known as matter of justiHcation and excuse. 
We shall then proceed to the particular branches of the 
subject, together with the conditions and exceptions which 
specially belong to iheui. 




^uLTV'"' ^^° " ™* '*'*'="" "> «'«' ""y '''^finite w^ta 
law th7f "''""" "' " »°"'"''' P^PO'itio" of English gTSS'^ 
la« th. ,t .s a wrong to do wilful harm to one's neigh- ^^' 
bour ^thout lawful justiBoation or excuse. Neither ia 

are m th« generalUy of form or inception modern, and 

nal . ° ^"'"'' ""■"='"'"' '"■' "^"^ -"-erltion of 

modern lawyer's sense, only a I .t of certain kinds of 
Zl77y r'f """' '^ ''°^°™''- Neither is there any 
which ,' "' ""'^ " "^' "^ "'^"'- "^'"ds of injur^ 
vh,ch have .ortau, penalties assigned to them. Thus 7n 

tnt7 ""' """" ""'^ «^--- '-- - find 

"nnuto assessments of the compensation due for hurts to 

,Z\T : "' "^ '"""'"' '"'y- ""' «^- '» "o gent 
proh.bU,o„ personal violence; and a like state of thin™ 
ppears .n the fragments of the Twelve Tables (^ 
Whatever agreements are outside the specified forms of 

OO In (iaius iii. 223, 224, the 
contrast kctvTMn tlio anei™t law 
ol flied penalties and the modern 
law of damage, atsoaed by judi- 
cial authority i, ,,l™Hy ,ho»n. 
1 he student will rememhcr that, 
»« re^rdi the ,Uge of develop- 
ment attained, the law of 
Justinian, and often that of 

Gains, is far more modern than 
the English law of the Year- 
Doolts. Perh.ip, the historical 
contrast holds only in Europe- 
■ee a note in L. Q. B. ii. 97, 
showing that among the Kachin. 
on the Burmese frontier elaimi 
(or unliquidateJ damages are not 
only known but freely anlgnabl. 


obligation and modes of proof are incapuble of enforce- 
ment; whatever injuries are not in the table of com- 
pensation must go without legal redress. The phrase 
damnum sine iniuria, which for the modern law is at best 
insignificant, has meaning and substance enough in such 
a system . Only that harm which falls within one of the 
specified categories of wrong-doing entitles the person 
aggrieved to a legal remedy. 

G«M»al Such is not the modern way of regarding legal duties 

to ^ barm or remedies. It is not only certain favoured kinds of 
1^^ *™ agreement that are protected, but all agreements that 
satisfy certain general conditions are valid and binding, 
subject to exceptions which are themselves assignable to 
general principles of justice and policy. So we can be 
no longer satisfied in the region of tort with a mere 
enumeration of actionable injuries. The whole modern 
law of negligence, with its many developments, enforces 
the duty of fellow -citizens to observe in varying circum- 
stances an appropriate measure of prudence to avoid 

(causing harm to one another. The situations in which 
we are under no such duty appear at this day not as 
normal but as exceptional. A man cannot keep shop or 
walk into the street without being entitled to expect and 
bound to practise observance in this kind, as we shall 
.more fully see hereafter. If there exists, then, a positive 
(duty to avoid harm, much more must there exist tito 
^negative duty of not doing wilful harm, subject, as 
all general duties must be subject, to the necessary 
exceptions. The three main heads of duty with which 
the law of torts is concerned — namely, to abstain from 
wilful injury, to respect the property of others, and to 
use due diligence to avoid causing harm to others — are 
all alike of a comprehensive nature. As our law of 



contract has been generalized by the doctrine of con- 
Bidcration and the action of assumpsit, so has our law of 
civil wrongs by the wide and various applications of 
actions on the case (6). It is submitted, moreover, that 
any attempt, at this day, to maintain a narrower concep- 
tion of civil duty can lead only to interminable difficulties. 

In fact there are dicta of the late Lord Bowen's which Anthori- 
appeai- fully to recognise the doctrine hero contended for. '™we^ 
Ho said, as Lord Justice, in 1892: "At Common Law 
there was a cause of action whenever one person did 
damage to another, wilfully and intentionally, and without 
just cause or excuse(c)." The actual decision was in verj 
special matter and on the construction of a statute, hul 
there is nothing in the context to qualify the generality 
of this opinion, and the fact that a very learned and 
accomplished judge rather went out of his waj- to express 
it makes it sccni, if anything, the more deliberate. Nor 
does the mere fact that a wilful injury docs not fall 
withi" llio four corners of some known form of action 
seem to be included in any natural meaning of "just 
cause or excuse." A similar dictum in the same judge's 
well-known judgment in Mogul Steamship Co. v. 
McGregor (d) is in terms limited to damage to a man in 
his property or trade. But first, these are the only 
material cases, for the duties of not wilfully harming our 
neighbours in person or reputation are admitted to be 
quite general; and secondly, the Supreme Court of the 
United States has thougiit the last cited dictum sufficient 
warrant for an unqualitied declaration. The opinion was 

(6) The developed Koiiian Law 
had either att&incil or wan on the 
[>oint of attaining a like gene- 
rality of application. " Deniquo 
nliis pluribua niodii adinitti iniu- 
riam manifcatuni eat: " I. iv. 

«, 1. 

(c) SNiiner if Co. v. Sliew f 
Co. ri893J 1 Ch. 413, 422, 62 
L. J. Ch. 196. 

(rfj (1889) 23 Q. D. Div. at 
p. 613. 



only in 

thua tixpie&sod by Holmes J. iu 1904: 'It has beou 
considered that, prima iacie^ th e inten tional in fliction of 
tempQrftl d.^I!li^£^5 ^J^^S^UBS^^f qntion, >vhifh, pb a m^*^*^**'' 
Q£jU)J;!SitftUtiy@Jbiw, whatever may be the form of pleading, 

{^lioguLMmmshipLCjm^iimU'-^- McQregor, 23 Q. B. D. 
598, 613.) Tf i\}\a ift fhp rftrrfict. Din>d<i "^ "^p prifVi^h i*" is 
nhvinijB tJmf .jiuUiiiuatijttUii uiuy vuiy in t!xtoHt-4kc^i«»»1ing 
\j\ thp priiiciplea .o£. jiQUfiy..^U{uui uHch they .ui:&.iQunded , 
and while same, for instance, at common law, those affect- 
ing the use of land,'.ft£c.,Ahaolute . . . ottl'^ili" Ttfty ^^pp"'^ 
iipnn Iha and for, wliirh .tjM.ftfit.ifl. done- ■ • ■ Tt jjg jjosnffi- 
iUfint.aa£muiJ:-to..tlu& liaa>flf thought that mati\£a_M£ not 
actionable, and that^ iiiQ„ staodards^ the law^ttca iixtfiinal . 

I^rfViffi,, h»t.Jii?]LttaCiiSsacii3^. in diitrr*"^'^"!;--^^^ fixtPA^t *^ 
uhifih hfi fi»n jiiHt.i£y>harni-whirh hc.Jifl3..£oBQaoen (Quinn 
X^JLssihem [1901] A. C. 495, 524) " (e). Some learned 
pei'sona here, however, still think otherwise (/) . 

If there is a general duty not to do wilful harm, it 
would seem on principle that the law iv.'od not rojrnrd 
the motive, in the sense of personal disposition, from 
wliich such an act proceeds, though the discretion of u 
judge as to costs, or a jury as to damages, may do 
so. Hfl, r"' dnnn without cxcuse cannot bo nia^[e fflpre 
^vrottgful than it is by the addition of bod faith or 
personal ill-will, noi made lawful by its abstnice. ,\.gain. 
it is a settled general rule in our law that wluiii.jU4~-act is 

(«) Cor. per Holmes J. -ti^fii** 
T ITiifrnrrrt 195 U. 8. 194, 204. 

(/) Mr. A. Cohen K.C'., in his 
memorandam on Allen v. Flood 
annexed to the Report of the 
[toval Commission on Trade Dis- 

putes (1906, Cd. 2825, pp. 24— 
30), denies the existence of any 
" general rule of law that a 
person who hy aome act inten- 
tionally does har-> to another is 
/•r'Wfl' /?!<"> li«bl»? tn him." 



Ue!*e,ia the exercise of a common right, the motive is 
inunateiial (g). Such an act may bo Jisuicct, courteous, 
or neighbourly, or not, but calling it malicious will not 
make it unlawful. The use of such terms as "malice" 
and "maliciously" appears therefore more likely to 
|)crplex the law and hinder the study of its true principles 
than to advance justice in any substantial manner. 
Unluckily the terms have been freely employed, and 
without any clear or constant meaning, and this has 
been the cause of great confusion which is not yet 
wholly removed (A). Hcoent authority has made it 
clear, however, that tluLxonaidcifttiQn flf. persoaal motive 
«s_jlL.determiniug. filfiment.. pi Jiability i» at- any rate 
ej^icptiflnal . 

" M!diefi-liil.lJwUtlUiC.ka)aLMi.ilLduqib'.SQ fat.aa,it 
may defeat £_claini to i"'mnnjtj- bngnnl on ..llufiyilege," 
wiiich assumes that the person claiming it has acted in 
good faith (j). For certain purposes and on cortain 
occasions, not many, a somewhat extensive liberty of 
interference with individual rights and convenience is 
deliberately allowed in the public interest. Being so 
allowed, it is in the nature of a special privilege- -which 
indeed it is regularly called in one class of cases— rather 
than of a common right, and it is subject to tlie con- 
dition of being exercised in good faith and not abused 
for ends of personal enmity. Such abuse is called 

(j?) Bradford Corporation v. 
Pioklet tl895J A. C. 5S7, 61 L. J. 
Ch. 759; Mien v. Flood 1 1898] 
A. C. 1,87 L. J. Q. B. 119. For 
.Vmericaii nutliority, see riero, 

(*) See the late Mr. W. K. 
Craies' learned artieles on 
'* Malice " and " Malieious 
I'm-ipriition "' in Rnpyel. Laws of 

Kngiand. The observations of 
Collins 31. R., in I!,ml v. 
Friendl'j SooiFtif of Ojtrrative 
Stonemaaom [1902] 2 K. 11. at 
p. 739, 71 L. J. K. B. 991, seem 
rather to deprecate « definition. 

(t) See, e.ff., per Lord Bramp- 
ton in Quinn v. Leathern [1901] 
A. C. at p. 521, 70 L. J. P. C. 76. 



"malioe" or "exprew malice," and dcprivos the act of 
justification (/c). 

The words " malice," " malicious," and " maliciously " 
were formerly used in pleading, and thence in forensic 
and judicial language, in many places where thoy were 
superfluous. This usage has been sometimes explained 
away by saying that malice means only the want of excuse 
for an unlawful act wilfully done; sometimes it has been 
frankly discredited. We are not here concerned with the 
fortunes of the same words in criminal law, where the 
disregard of their ordinary meaning has been extreme; 
but the common law doctrine of " malice aforethought " 
in murder and the statutory ofl'enoc of " malicious damage " 
have no doubt contributed to the general obscurity of the 

Very little light is to be obtained from the history of 
the Latin word meditia. Classical usage, oftener than not, 
makes it import fraud or underhand contrivance as well as 
ill-will; but sometimes it means vice or wickedness in 
general, and in the Vulgate we read Sufficit diet malitio 
mux. The original intention of its use as a legal term 
was probably to exclude reference to acts which were not 
wilful at all, or which were honestly done undei a claim 
of right or in ignorance of the facta by reason of which 
the act was unlawful (2). In the result, the incautious 
adoption of popular language led to the worst kind of 

Aoto in The commission of an act specifically forbidden by law, 

^J^„° lor the omission or failure to perform any duty specifically 
legaldutT.Jjmp^j^ by law, is geusiaJUy equivalent to an act^doue 

(A) Cp. the (litta of Lord Her- 
Mhell, Lord Wataon, and Lord 
OaTejr, in AUtn v. Flood [igOOJ 

A.C. 1,93,125,172. 

(0 Cp. FoUocJi and MaiUand, 
U. E. L. ii. 467 (46», 2nd «!.). 


I with intent to cause w r n ngf u l injury. Where the harm 
that oneuos from the unlawful act or omission is tho very 
kind of harm which it was the aim of the law to prevent 
(and this is tho commonest case), the justice and neoessity 
of this role are manifest without further comment. Where 
a statute, for exampk, expressly lays upon a railway 
company the duty of fencing and watching a level crossing, 
this is a legislative declaration of the diligence to be 
required of tho company iu providing against harm to 
passengers using the road. Even if the mischief to be 
prevented is not such as an ordinary man would foresee 
as the probable consequenoo of disobedience, there is some 
default iu the mere fact that the law is disobeyed; at any 
rate a court of law cannot admit discussion on that point; 
and the defaulter must take tho consequeneee. The old- 
fashioned distinction between mala prohibita and mala in 
te is long since exploded. The simple omission, after 
notice, to perform a legal duty, may be a wilful offence 
within tho meaning of a penal statute (m). As a matter 
of general policy, there are so many temptations to neglect 
public duties of all kinds for tho sake of private interest 
that tho addition of this quasi-penal sanction as a motive 
to their observance appears to be no bad thing. Many 
public duties, however, are wholly created by special 
statutes. In such oases it is not an universal proposition 
that a breach of the duty confers a private right of action 
on any and every person who suffers particular damage 
from it. The extent of the liabilities incident to a 
statutory duty must bo ascertained from the scope and 
terms of the statute itoelf . Acts of Parliament often 
contain special provisions for enforcing the duties deekred 
by them, and those provisions may bo so framed as to 
exclude expressly, or by implication, any right of private 
(m) Oull) V. SmM (188S) 12 d. B. D. 121, 53 L. J. 31. C. 35. 




■uit (n) . The provision of a specitic remedy for the breach 
of duties created by the Act is generally hold to exclude 
other romedioe (o). Also there is no cause of action where 
the damage complained of " is something totally apart 
from the object of the Act of Parliament/' as being 
evidently outside the mischiefs which it was intended to 
prevent . What the Legislature has declared to Iw 
wrongful for u deKnito purpose cannot be therefore treated 
OS wrongful for another and different purpose (p . 

Dn^ol As to the duty of respecting proprietary rights, we 

JJ^JS^f have already mentioned that it is absolute. Further 

illustration is reserved for the special treatment of that 

division of the subject. 

Duties of 

tion of 

Then we have the general duty of using due care and 
caution. What is due care and caution in given circum- 
stances has to hv: worked out undttr the head of negligence. 
Here we may say that, generally speaking, the standard 
of duty is fixed by rofcrono} to what we should expect in 
the like case from a man of ordinary sense, knowledge, 
and prudence. 

Moreover, if the party has taken in hand the conduct 
of anything requiring special skill and knowledge, we 
require of him a competent measure of the skill and 
knowledge usually found in persons who undertake such 
matters. And this is hardly an ai.dition to the general 
rule; for a man of common sense knows wherein he is 

(n) Atkinaon 

Matenvorkt Co. (1877) 2 Ex. 
Div. 441, 46 L. .,. Ex. 775. 

(o) Patmore v. Oiu-aldtwistle 
Urban Council [1898] A. C. 387, 
394, 67 L. J. Q. B. GiS; cp. 
Johntton V. Conaumers' Oan Co. 

yencaatlc of Toronto [1898] A. C. 447. 67 

L. J. P. C. 

(p) GorriB v. Scott (1874) 
L. R. 9 Ex. 125, 43 L. J. Ex. 92 ; 
Ward V. Hobb» (1878) 4 App. 
Ca. 13, 23, 48 L. J. Q. B. 281. 



oompotent and wherein not, and does not take on hiinwlf 
things in which ho is incompetent. If a man will drivi- a 
carriage, he u bound to have thi' ordinary oompctcnco of 
a coachman; if ho will handle a ship, of a seaman; if 
he will treat a wound, of a surgeon; if he will lav briob, 
of a bricklayer; and so in every case that can bo put. 
Whoever takes on himself to exercise ii craft holds him- 
self out as possessing at least the eoninion skill of that 
craft, and is answerable accordingly. If he fails, it is no 
I'xcuse that ho did the bt-st he, being unskilled, actually 
could. He must at his peril have " skill reasonably com- 
petent to the task ho undertakes " (g; . As the Romans 
put it, imperitia culpae adnumeraliir (r) . A good rider 
who goes out with a horse he had no cause to think un- 
governable, and, notwithstanding all he can do to keep 
his horse in hand, is run away with by the horse, is 
not liable for what mischief the horse may do before 
it is brought under control again («; ; but if a bad rider 
is run away with by a horso which a fairly good rider 
oould have kept in order, he will be liable. An ex- E.oopti,m 
oeption to this principle appears to be admissible in one i;',^™^ 
uncommon but possible kind of circumstances, namely, 
whore in emergency, and to avoid imminent risk, the 
conduct of something generally entrusted to skilled persona 
is taken by an unskilled person; as if the crew of a 
steamer were so disabled by tempest or sickness that the 
whole conduct of the vessel fell upon an engineer without 
knowledge of navigation, or a sailor without knowledge of 
steam-enginee. So if the driver and fireman of a train 

'?) Jiarmrr v. Cortieliua (1858) 
5 C. B, N. a. 236, 246, 116 B. K. 
694, 659. 

(r) D. 50. 17, do div. rug. 
iuria antiqui, 132; cf. T>. 9. 2, sd 
legem Aquiliam. 8. Both paa- 

logoa are from Goiua. 

(•) Ilammaek v. White (1862) 
11 C. B. If. S. 588, 31 L. J. 
C. P. 129; Jlolma v. Mathtr 
(1875) L. E. 10 Ex. 261, 44 L. J. 
Ei. 176. 



in ralatioii 

of utor 

were both disabled, my by >uiutrokc or liglitning, thi< 
guard, who ia proaumably unskilled as concerns driving a 
locomotive, is evidently not bound to perform the driver's 
duties. So, again, a person who is present at an accident 
requiring immediate " first aid," no skilled aid being on 
the spot, must act reasonably according to common know- 
ledge if he acts at all; but he cannot be answerable to the 
same extent that a surgeon would be. There does not 
seem to be any distinct authority for such cases; but we 
may assume it to be law that no more is required of a 
[lerson in tliis kind of situation than to make a prudent 
iind reasonable use of such skill, be it much or little, as 
lie actually has. 

We shall now consider for what consequences of his 
acts and defaults a man is liable. When complaint is 
made that one person has caused harm to another, the 
first question is whether his act (t) was really the cause 
of that harm in a sense upon which the law can take 
action. The harm or loss may be traceable to his act, 
but the connexion may be, in the accustomed phrase, 
too remote. The maxim " In iuro non remota causa 
sed proxima spectatur" is Englished in Bacon's con- 
stantly cited gloss : " It were infinite for the law to 
judge the causes of causes, and their impulsions one 
of another : therefore it contenteth itself with the 
immediate cause ; and judgeth of acts by that, with- 
out looking to any further degree" (u). Liability must 
he founded on an act which is the " immediate cause 
of harm or of injury to a right. Again, there may have 

(0 l^or shortneaa' sake I ehall 
often use the word " act " alone 
us equivalent to " act or default." 

(u) Maxims of the Law, 
Ucg. 1. For criticism, see 
Harr. I^w Hot. xiv. lOO. 
tt is remarkable that not lue of 

the examples adduced by Bacon 
belongs to the law of torts, or 
raises a question of the measure 
of damages. There could be no 
stronger illustration of the ex- 
tremely modern character of lh<' 
whole subject as now undcntood . 



been an undoubted wrong, but it may bo doubtod ho* 
much of tho harm that eoBuoa i, rolat»d to the wrongful 
act oa Its •■ immediate oaurw," and theroforo i« to bo 
counted ,n climating the wro„«-door'8 liabilit.y. The 
distinction of proximate from remote consequent i, 
noodfulfir.t to aaoertain whether there is «„y liability at 
all, and then, if it i, established that wrong haa been 
committed, to settle tho footing on which compensation 
for the wrong i, to l,o awarded. The normal form of M-.«,„, 
compensation tor wron^-s, m for breaches of contract in ''"""»"■ 
tho procedure of our Hu,,e. or Courts of common law ha, 
been the flMng of damages in mono.v by a jury under the 
direction of a judge, ft is tho duty of the judge (o') to 
.'xplain to the jurors, as a matter of law, the footing upon 
which they should calculate the damage, if their verdict 
>s for the plaintiff. This footing or scheme i, called the 
measure of damages." Thus, in tho common case of 
a breach of contract for the sale of goods, the measure 
ot damages is the difference between the price named in 
the contract and the market yalue of the like goods at the 
time when the contract was broken. In cases of contract 
there » no trouble in separating the ques.ion whether 
a contract has been made and broken from the question 
what IS the proper measure of damages (y) . But in cases 
of tort the pnmaiy question of liability may itself depend 
and It often does, on tho iHiarnos. or remoteness of the 
harm complained of. E.veept where we haye an absolut.. 
duty and an act which manifestly yiolates it, no clear 
line can be drawn between the rule of liability and the 
rule of compensation. The measure of damages, a matter 
appearing at first sight to belong to tho law of remedies 
more than of " antecedent right,,' constantly inyolves 

(*) Nndtey v, Bazendnle (1854^ 
« K». 34!, 23 L. J. Ex. 179, M 
H. B. 742. 

(,'/) Whether it is pnctirsllv 

worth while to «uc on a contract 
must, indeed, often turn on the 
measure of damages. But this 
need not concern oa htre. 


of '• Immi-' 

for oonnc- 
of wiliul 


in the field of torU, pointt that arc in trutli of the nt\ 
•uUtanoe of the Uw. It if under the head of " moMuri- 
of damagoe" that thoio for the meet part occur in 
practice and arc familiar to lawyers; but their real 
connexion with the IcadinR principles of the aubject must 
not he overlooked here. 

The meaning of the term " immediate cause " is not 
capable of perfect or general definition. Even if it hod 
an ascertainable logical meaning, which is more than 
doubtful, it would not follow that the legal meaning is 
the same. In faut, our muxim only points cut that some 
consequences arc held too remote to be counted. What 
is the test of remoteness wo still have to inquire. The 
*iew which I shall endeavour to justify (j^) is that, for the 
purpose of civil liability, those consequences, and those 
mly, are deemed "immediate," "proximate," or, to 
mticipate a little, " natural and probable," which a person 
>f average competence and knowledge, being in the like 
base with the person whose conduct is complained of, and 
iiaving the like opportunities of observation, might be 
fcxpocted to foresee as likely to follow upon such conduct. 
This is only where the particular consequence is not 
known to have been intended or foreseen by the actor. If 
proof of that be forthcoming, whether the consequonoe 
was "immediate" or not does not matter. That which 
a man actually foresees is to him, at all events, natural 
and probable. 

In the case of wilful wrong-doing we have an act 
intended to do harm, and harm done by it. The inference 
of liability from such au act (given the general rule, and 
assuming no just cause of exception to be present) may 
seem a plain matter. But even in this first case it i» 

(y) For an able eiposition of a different view, see Prof. Jeremiah 
Smith, Harv. Law Rev. iiv. 103, SM. 


not >o plain u it womg. Wo have to consider tho 
lolati... of that which tho wronR-Joer intends to tho 
.•vcn(« which in fact are brought to pass by his deed; a 
relation which is not constant, nor always evident. A 
man strilies at another with his fist or a stick, and tho 
blow takes efloot as ho meant it to do. U,m tho 


:.,'U, and 


■ .ii,.:,, 


connexion of act and oonsequeuoo ia pla 

the wrongful actor is liable for tho resu' i, - 

till! consequini^' may bo more than "..: i 

iliilcrent. And it may bo dillerent ' ■, i, 

tlie event, or of the person all'eeted. N ,i f, 

I'islol and knocks him down. Th Muw i 

in iUelf, but i'istol falls on a heai, r .toi/ 

and bruise him. Or they are on th ' h\.,,. 

ditih; Nyni docs not moan to ])ut Pistol riU 

but his blow throws Pistol olt his balani , ,.„.,„ 

Pislol does fall into the ditch, and his clothes are spoilt. 

Those are simple cases whore a diUercnt consequence 

from that which was intended happens as an incident of 

the same action. Again, ono of Jack Cade's men throws 

a stone at an alderman. The stone misses tho alderman, 

but strikes and breaks a jug of beer which another citizen 

is carrying. Or Nym and Bardolph agree to waylay and 

boot Pistol after dark. Poins comes along tho road at 

the time and place where they c.vpcct Pistol; and, taking 

him for Pistol, Bardolph and Nym seize and beat Poins" 

Clearly, just as much wrong is done to Poins, and he has 

the same claim to redress, as if Bardolph and Nym mount 

to beat Poins, and not Pistol (.-). Or, to take an actual 

(~) III criniiiiul lavf tlicro ia 
SOUR, diffifutty in tlio case of ut- 
tciii]>le(l per-oiml offences. Thcr,! 
is no doiil>t tlittt if A. shooti ond 
kill- ur v.uund.i ,\., midur Itiu be- 
lief tliat the man ho shoati ut in 

1". T. 

2., ho ii in no way excuwd by Iho 
riiialalio, and lannot bo lienril to 
«uy that ho liad no unlawful in- 
lenlion aj to .\.: Ji, y. Smil/, 
tiao6) IJeara. 5.50. Jlut if he 
missoi, it seems doubtful whether 


and well-known case in our books (a), Shepherd throws 
a lighted squib into a building full of people, doubtless 
intending to do mischief of some kind. It falls near a 
IXTBon who, by an instant and natural act of self-pro- 
tection, casts it from him. X third person again doe. 
the same. In this third llight the squib meets with 
Scott strikes him in the face, and explodes, destroying 
the sight of -inc eye. Shepherd neither threw the squib 
at Scott, nor intended such grave harm to any one: but 
he is none the less liable to Scott. And so in the other 
eases put, it is clear law that the wrong-doer is liable to 
make good the consequences, and it is likewise obvious 
to comn.on sense that ho ought to be. He went about to 
do harm, and having begun an act of wrongful misrhicf. 
bo cannot stop the risk at his pleasure, nor eoniine it to 
the precise objects h.- laid out, hut must abide it fully and 
to the end . 
" N.tai.1 This principle is coinnionly expi« ~ : in the maxim that 
«■>»«• ■• a man is presumed to intend the natural consequences 
SS^oi of his acts;" or, in the terms of a judicial statement, "^«. 

;h:™!:r°. EHJx-'ny.n.bpJsma^-e'i. i" roinioLkwaaia&pAthat 

i"te"ti»»- ,^.| ,;^i, i„ ii^ neccssarx and nntur al conso auaUiai-gUtot 
wJudt-MdoW "'(''); "■ Imposition which, with due 
,.xplanation and withindue limils, is a. tvptuble, but which 

he ran be said to have attempted 
to kill either X. or Z. Cf. Jt. v. 
r.-it!mer (1886* 17 Q. B. P. 359, 
55 I.. J. M. C. 135. There h 
a whole literature of modern 
Cnntinentol tontroversy on the 

(h) Scott V. Shrpherd. 2 W. 
\\\. 892; und in 1 Am. L. C \o 
IjIUllti lyftn p"*"'-^-'^'""'' "f Shep- 
I Tnt'fT li ffh UJt y - thi-nnlv aupgtion 

»r flj » lin hlf. The inference of 
wrongful intention is in tlii^ case 
about as obvious as it ean be: it 
wa«, liowcver, not net-e^.'^ary, 
aiiuib-tliiowing, as Narcs J. 
pointed out, having been dcelarrd 
a nui?4an('0 by statute. 

ih) llayley J. in /■'- v. l(atii£>i 
(1K23) 2 n. & C. 237, 264, 26 
U. II. at p. 313. This wai in a 
criminal case, and therefore 
applies o/o*-(*o/-» to civil liability. 


in itsolf is ambiguous. To start from tho simplest case 
^0 „mj- know that tho ,„a„ i„te,„Icd to produce a certain 
«o„soquenee, and did produce it. And ,vc may have in- 
dependent proof of th.. intention; a« if he announced it 
beforehand by threat,, or boastin;. of what he would 
do. But oftentin,.., the aet itself is the chief or sole 
proof of the intention ,vith which it is done. If wo 
«•>■ Xym walk up to Pistol und knock him down, wo 
inter that Pistol's fall „-„s intended bv Xvm as the 
«onseque„«3 of the blow. W.. „,„.v be nustaken in this 
Judf,Mnent. Possibly Xyn, is walking in his sleep, und 
l.ns no real intention at all, at any rate, none which 
can iH, unputed to \y,n awake. But w,. do naturally 
inier xnteution, and the chances are greatlv in favour 
of our^ be.ns: rif-ht. S„ nobody could doubt that 
when f,hepherd threw a lishted s,,uib into a crowded 
place he c.vpeeted and n.eanf mischief of some kind to be 
done by ,t. Thus far it is u real inference, not a pr,- 
8u.npt.on properly so called. Xow take th,. ..„se of Xvn, 
knockinp Pistol over a bank into the ditch. Wo will 
suppose there is nothing, (as there w,.|l „,av be nothing 
but Nym s own worthless .ussertion) to show whether Xvm 
knew the ditch was there; or, if he did know, whether" he 
meant Pistol to fall into it. These questions are like 
enough to be insoluble. How shall we deal with them? 
We shall d.sreo-ard then,. From Nyn.'s point of view his 
purpose may have b-^on si.nply to knock Pistol down or to 
knock him into the diteh also; from Pistol's point of view 
the pricvanec. is the The wron.-doer cannot call 
on us to perfor.n a nice discrimination of that which is 
willed by l„n, fron, that which is only consequential on 
the strictly wilful wrong. Wc say that intention is pre- 
sumed, meaning that it do™ not u.alter whether intention 
«« be proved or not; nay, n.ore, it would in the n.ajority 




of " na- 
tural atid 

of cases make no difference if the «rons-docr could dis- 
prove it. Such an explanation as this -" I did mean to 
knock jou down, but I meant you not to fall into the 
ditch "-would, even if telicvcd, be the lamest of 
apologies, and it would no less ho a vain excuse in law. 
The habit bv which we spoak of presumption comc^ 
W«d Iprobablv from "the time when, inasmuch as parties could 
P^"^" not give evidence, intontion eould hardly ever ho matter 
'i-e. y atcct proof. Under the old system of pleading and 
pr<x3edure, Brian C. .1. migL.t well say " tho thought of 
„,„n is not triable • :c; . Still there is more in our maxim 
than this. For although we do not care whether the man 
intended the particular cx>nsoquence or not, we have m 
uund such consequences as he might have intended or, 
without exactlv intending them, contemplated as possible; 
so that it would not be absurd to infer as a fact that he 
either did mean them to ensue, or put aside the 
risk of some such consequences .'nsuing. This is the limit 
inlro<luc«l bv such terms as " natural'-or more fully 
"natural and probable "-consequences (<i; . What is 
nauual and probable in this sense is commonly, but not 
alwavs, obvious. There are consequences which no man 
eould with common sense and observation, help fore- 
seeing There are others which no human prudeuee 
eould have foreseen. Between these extremes is a middk 
ve<non of various probabilities divided by an ideal bound- 
.,n- which will be differently fixed by dillerent opinions; 
,„d as we approach this boundary the dilKculties mcrease. 

(c) Yojr-llouk 17 M»-. IV. 1, 
traiislaloJ in Iilii(kliurii on Sol.', 
ol ,1.193 in 1st oJ.,2lilinindc<i. 
by Oralium. 

(rf>" Normal, or lilic'ly or i)ro- 
boWo ol ocourrcme in tlir ordi- 
nary lourso of lliinst', """I'' 

prrliai>s 1)0 llio moro correct cx- 
proasion; " Orovo J. in Smith v. 
(/rrc, (1875) 1 C. P. D. at 
p. 96. Dut wliat is norma! or 
likely to n specialist may net bo 
normal or liUcly to a plain man's 
knowlelgo and cNliotirncc. ^ 


Tlicro is ii point where subsequent events are, according 
to common understandinff, the oonsequKnco not of the tirst 
wrongful act at all, but of something ehe that has 
happened in the meanwhile, though, but lor tt= first act, 
the event might or could not have Ix^en what it was (c;.' 
But that point cannot be defined In- science or philo- 
sophy (/); and even if it could, the definition would not 
be of much use for the guidance of juries. If English 
law scorns vaguo on theso questions, it is because, in the 
analysis made necessary l)y the separation of findings of 
fact from conclusions of law, it has grappled more closely 
witli the inherent vagueness of facts than any other 
system. Wr may now take some illustrationt, uf the rule 
of " natural and probable eonscquencrs " as it is generally 
accepted. In wliatcver form we state it, we mu.?t remem- 
ber that it is not a logical definition, but only a guide to 
the exercise of common sense. The lawyer cannot afford 
to adventure himself with philosophers in the logical and 
metaphysical e;)ntrovorsics that beset the idea of cause. 


In Vandenhiirfjh v. Truax [g], d, eidcd by the Supreme r.»j«. 
Court of New York in 1847, the plaintilfs servant and rZi"' 
the defendant quarri'lled m tiie street. The defenilant 
took hold of tl>e servant, wiio broke loose from him and 
ran away ; -the defendant took up a pick-axe and followed 
the boy, who lle:l into tae phiintiHs store, and the do- 

• f) Thus Quain J. faid (Swcabif 
V. /,. .1- ]■. Hail. Co. (1874) L. U. 
9 IJ. U. at p. 208) : ■• In tort tlio 
dofetiiiant is linblo fur all the 
• "iiaixiuoncej of his illegal act, 
where they are not so reriiob; as 
to have no direct eonncction with 
tlio act, as by the lapse of timo 
for instance." 

(/) "The doctrine of causa- 
tion," said Fry L. .T., '• involves 
much difllculty in philosophy aa 
in law ": St-tott v. Lif/me (18S7) 
19 Q. U. Div. at p. 71, m L. J. 
(J. II. 413. 

ij) t Denio, ;G4. Tlio decision 
seems to be aecopte;! as gfood law: 
I'icr.1. 31, 32, 43. 


OuiUe V. 

t: if, 


fondant pursuod him tl.oro, with the pick-axc in hi, hand " 
In running behind the «.untor for shcltor tho >«rvant 
knocked out tho faucet from a cask of »in,.. yhon-by tl» 
wine mn out and was lo»t. Hoi-e tho d.f.ndanl what- 
ever tho n.erits of the original quarrel) was clearly .. wrong- 
aoer in pursuing tho boy; the plaintiff's house was a 
natural place for his ser^ant to take refuge in ami .t was 
also natural that the servant, " ileeing for his hie from a 
„,„n in hot pursuit arm«l with a deadly weapon, should, 
in his hasty movements, do some damage to the phuntiff s 
property in tho shop. 

There was a curious oarlier ease in tho same State (/.), 
where one C.uiUe, after going up in a balloon, came down 
in Swan's garden, A crowd of people, attracted by ho 
balloon, broke into the garden and trod down tho 
vegetables and (lowers. (iuiUo's descent was in itself 
plainlv a trespass: and ho was held liable "ot^only for 
the damage done by the balloon it^-lf but for that which 
was done bv the crowd. "If his descent und<.r such 
cireumstanc;, would ordinaaily and naturally draw a 
crowd of people about him, cither from curiosity, or for 
the purpose of ix^scuing him from a perilous situation; all 
this he ought to have foreseen, and must be responsiblo 
•for" (i) In both these cases tho squib ease was com- 
mented and i-elied on, Similaily it has many times bcMi 
said, and it is undoubted law, that if a man lets loose a 
dangerous animal in an inhabited place he .9 liable for all 
the mischief it may do. 

I/,) G,,iUc V. ll «»« (1822) 19 
Johna. 381. 

(i) Vcr apcnirr C. .'. It "p- 
pcared that the defendai't (plain- 
tiff in error) liad called for help ; 
but this WM treated as inmate- 

rial. The laler Seotfish raie nf 
Kcoll'i Trmlen v. .tf»" (18H9> 
17 B. 32, i» hardly «o strcmg, f"r 
there a parnvlmle dejeent was nut 
only contemplated but ndvcrtiscJ 
as a public .nt.Ttainmcnt, 



The balloon caao illustrates what was observod in the Liubility 
first chapter on the plaw of trespass in the law of torts. quenimB of 
The trespass vas not in tho eommon u-nae wilful; Guillo '™'I*" 
eertainly did not mean to eoiiie down into Swan's garden, 
which lie did, in fact, with some danger to himself. But 
11 man wlio goi« up in a balloon must know that ho has 
to come <lo\vn Bomewhcre, and that ho cannot lie sure of 
coming down in a place which he is entitled to use for 
that purpose, or where liis descent will cause no danmae 
and excite no objection. Guille's liability «iisuerardinglv 
the same as it the liiilloou had bwii under his control, and 
he had guided it into Swan's garden. In the case of a 
dirigible airship or aerojilune. if by some aci'ident which 
could not be ascribed to any fault of the pilot the 
stwring apparatus got out of order, and so llie machine 
drifted into a neighbour's gaidcn. the question might bo 
less simple (fr). So, if a landsliji carries iiiniy my land 
and house from a hillside on wliich the house is imilt, and 
myself in tho house, and leaves all overlying a neighbour's 
lield iu the valley, it cannot be said that I am liable fcM' 
the damage to my neighbour's lanil: indeed, there is 
not even ii technical trespass, for there is no voluntary 
act at all. But where ti-espass to property is eommitti'd 
by a voluntary act, known or not known to be iin infringc>- 
ment of another's right, there the trespu.s»er, as regards 
liability for consequences, is on the same footing us a 
wilful wrong-doer. 

.\ simple exanij)h> of a consequenc*' too remote tii he Conse- 
ground for iiabiliiy, though it was part of the incidents Z'm^'°" 
following on u » rongtul ael. is ullcinlwl by (fhl'Xi..\ . j'Tyj,- 

i/.t Other (T^'unds i.f !iability taking as to l)ind tlif luiutop 

are coinoivalili-'. It may be argu- to "(omummatL' care." (Sec 

alilp lliat modfrii arriat navijra- Cii. ,\1I.) 
tioii H BO daiiKcruua an under- 

II. r«. 



LammJiiid Smth Western Itwii^^lV Company (l). The 
plaintiff, boiiig a passenger on tho railway, was charged 
by the company'* tirkot collector, wrongly as it turned 
out, with not having a ticket, an(J was removed from 
the train hy the company's aervants with no more i'orc' 
than was necessary for tho purpose. He loft a pair of 
raco-glansos in tlu; carriage, which were lost; and ho 
sought to hold t^'- company liable not only for the 
personal assault cummittod hy taking him out of tho 
train, but for the value of these glassos. The Court hold 
without diificulty that the loss was not the "necessary 
oonsequenoe " or "immediate result" of the wron^^ful 
act: for there was nothing to show that tin 'laintilT was 
prevented from luking his ghissi'S with him. or that h;> 
would not Imvo got them if after leaving the carriage he 
had asked for them. 

of what is 
killinir ill 

for negli- 
<'Q proba- 
lulitj of 
i.-*., ltd 
of beioK 
by B 

In criminal law tiie question not unfrequoutly occurs, 
on a charge of murder or manslaughter, whether a corLain 
act or neglect was the '" immodiato cause" of the doath 
of tiie deceased i>ersou. We shall not enter hero upon 
the cases on this head; but the comparison of th'^m will 
be found interesting. Thf\v have b> -n collected by Sir 
.lames Stephen ''m). 

Tho doctrine of "natural and probable consequence" 
is most clearly illustraleci, however, in the law of negli- 
gence. For there tho substunoo of the wrong itself is 
failure to act with tlue foresight: it has been defined as 
"the omission to do something which a rcasonable Man, 
guided upon those considerations which ordinarily r '^ulato 
the conduct of human affairs, would do, or doin;; -ome- 

(0 (IH67J h. It. 3Q. B. 25,37 
L. J. Q. B. 57. 

(m) I>igc3t of the Crimiiitil 
Uw, Arts. 219, 220. 


thing which a prudent and reasonable man would not 
do " (n) . Now a reasonable man can bo guided only by a 
reasonable estimate of probabilities. It men went about 
to guard themselves against every risk to themselves or 
others which might by ingenious conjesture be conceived 
as possible, human affairs could not be carried on at all. 
The reasonable man, then, to whose ideal belmviour wo 
arc to look as the standard of duty, will neither neglect 
what he can forecast as probable, nor waste his anxiety on 
events that are barely possil>le. He will order his pre- 
caution by the measure of what appears likely in the 
known course of things. This being the standard, it 
follows that if in a particular case (not being within 
certain special and more stringent rules) the harm com- 
plained of is not such as a reasonable man in the 
<lefendant'8 place sliould have foreseen as likely to 
happen, there is no wrong and no liability. And the 
statement proposed, though not positively laid down, in 
Urf i f i niaud , v i i nti p ltn {o)t namely, " ^Imf ^ pt^rsftn i-^ 
expected to anticipate and guard against aU reasonable /]. 
™n"?au™?es. bujjjhat JiE is not, by the law of England, C^'X^v. 
cxsectci Ja auticipate and guard against that which no/ ^-"5(1 

rcasanahlo.jmm.would expect to occur," .appears to con- 
tain-tkejuJy: rule tenable oiLpiimipIe A^Jjaicthe liability 
i a fniindnrl aal nljr nn nnQlionn cc. " .Mischief which could 
by no possibility have been foreseen, and wliich no 
reasonable person would have anticipated," may be the 
ground of legal compensation under some rule of excep- 
tional seventy, and such rules, for various reasons, exist; 

(n) .\l(Ierson B. in Slifth v. 

Ilirmitujiui -1 IVntcrifOrki Co. 

(1850) 11 E.^. 781, 25 L. J. Es. 
•Jl"', 105 B. R. 791. Tliis is not 
a ooinplete definition, since a man 
is not lisblo for even wilful omia- 

sion witliout some antecedent 
ground of duty. But ot tliat 

(o) Per Pollock C. D. (1850) 5 
I!.x. at p. 248, 82 R. R. ot p. 660. 



mil V. 

New Rim I 


liP' under an ordinary rule of duo care uud cnution it 
e. .inot lie taken into account (p). It is suggested by a 
learned and lamented author whose opinions are always 
di>«rving of attention that this rule applira only "in 
determining what is negliKenw, " and "not in limiting 
the eonsi'qm ;,. . Ilowinff from it when once established:" 
and tliis i)o»il.on is worked out in an ingenious and 
ebborate argui , ^7)- The limited scale of this hook 
forbids me tr », . more than that, with all respect, I aui 
unable to toll' v him. 

Wo shall now give examples on either side of the line. 
In UiU " Afi r "•':<■' ■ Commmnir), the defendant 
company had in the course of llieir works caused a stream 
of water to spout up in the middle of a public road, with- 
out making any provision, sucli us fencing or watching 
it, tor the safety of persona using the highway. As tlie 
phiintiil's horses and eiMriiig<' were being driven along the 
road, the horses shied at the water, dashed across the roud, 
and fell into an open excavation by the roiulsidu which had 
been niLido h> persons luul tor purposes unconnected with 
thi' water conii)any. It was argued that th.^ innneiliate 
cans.' of the injuries to man, horses and carriage ensuing 
upon this fall was not the unlawful act of tlie water 
company, but the neglect of the contract, who had 

Law, i. IWi, for a different 
opinion, whiih sceniB, at itntt 
ttijfht, to l)0 .-iuinporteci by the dicta 
of Channcll H. and Blaekburii J, 
in Xmilh V, /.. * S. If, K. Co. in 
Ex, L'h. L, K. 6C 1', 14,21 («" 
Bio'-e an to Ihi^ ease, pp, 466, 467, 
below ) . 1 submit that these dieta, 
taken with the context, mean 
only that it is not sufficient for 

u dcfeitilunt to say tliat ho could 
not Iiavo anticipated the consc- 
((uciice.* in every detail (cp. the 
easc^ discussed in llio text). 
Otherwise they seem agitiunt the 
weight of authority, 
I, /I Ibid. 

v) » B, J. S, 303 (1868); cp. 
liurrix Y. Mobbi (lX>nman J. 
1S78) 3 Kx, P, 268, which, 
perhaps, (foos a step farther. 


made tho cutting in leaving it o|)on and unfoiiiod. Hut 
till' Court hold that the "proximate cause" was "the 
iirst negligent oct which drove tho earriago and iiorse» 
into tho excavation." In fact it was u natural oonsequence 
that frightened horses should bolt off tho road: it eould 
not ho foreseen exactly where they would go off, or what 
they might run against or full into. But some sucli harm 
IS did happen was probable enough, and it was inimnieriiil 
for tho purpose in hand whether the actual state of the 
frround was temporary or permanent, tho work of nature 
or of man. If , earrioge had gone into u river or over 
un embankment, or down a piwipico, it would seareely 
ha\e been possible to raise tho doubt. 


llMsJttS v-facai ]i:cato<i fi«(/iaui Cmnpunnix] is „ »•;«(.». 
stronger case, if not un extreme one. There were on a «.?;."■ 
)iortion of the company's lino in Denbighshire two k'vel 
crossings near one another, the railway meeting a carriugo- 
roud in one place ajid a footpath (wliicli branched oft' 
from the road) in the other. It was the dut^- of the 
company under certain Acts to have gat.'s and a watihman 
at the road crossing, and u gale or still- at the footimtli 
crossing: but nunc of these things had been done. 

■■ On the 22nd l)oc<'mbcr, 1871, tlir plnintitf. a ciiild of 
four and a-half years old, was found l\ ing on tlic- rails by 
till- footpath, with one foot smcred from his body. There 
was no evidenr<i to show ho« the child had come there(n. 
beyond this, that he hud Ihvu soul on un errand a tew 

Hi L. K. 9 IX. 137, « I.. J. 
Ex. 105 (1874). Cp. Ilaije, v. 
}tichigttn Centnit Hail. Co. 
(1883) 111 U S. 228. 

1 1 Nor aa to any particular 
train, nor u to precaution.s, if 
any, besidea the statutory prv- 

cautionH proved to liavc licen 
otnittcd, wtiieti may Jiavo bit-n 
proioribed or observed at the 
level c^o^.«in^f. It may bo inferred 
that tlie ai'tident happened in tho 




Marih V. 



minute! before from the cottage whore ho lived, which 
lay by the roadtidc, at about 300 yards distanoo from the 
railway, and farther from it than tho point whore the 
footpath diverged from tho road. It wa« suggested on 
tho part of tho defendants that he had gone along the 
road, and then, reaching tho railway, had strayed down 
tho line; and on tho part of tho plaintiff, that he had gone 
along tho open footpath, and was crossing the lino when 
ho wos knocked down and injured by the passing train." 

On these facts it was held that there was evidence 
iropor to go to a jury, and on which they might 
Reasonably find that the Occident to tho child wos caused 
py tho railway company's omission to provide a gate or 
itile. "One at least of tho objects for which a goto or 
stile is required is to warn people of what is before them, 
and to make thorn pause before reaching a dangerous 
place like a railroad '' (u). 

In BailiMijdJimuMu.MmjiL\^JJMiltiMMise (x), a 

Trinity House cutter had by negligent navigation struck 
on a shoal about throe-quarters of o mile out.side the 
plaintiffs' sea-wall. Becoming unmanageable, the vcsppI 
was inevitably driven by strong wind and tide against 
tho sea-wall, and did much damage to the wall. It was 
hold without diffioulty that the Corporation of the Trinity 
House was liable (under tho ordinary rule of a master s 
responsibility for his servants, of which hereafter) for this 

(u) Amplilott D , ' . U. 9 K%. 
at p. 162. 

(I) L. It. ,5 Ek. "iJ, .39 L.J. 
Ei. 163 (1870) ; in Es. 111. L. R. 
7 El. 217 (1S72). This i-omcs 
near the case of letting loose a 
dangerous animal ; a drifting ves- 
sel is in itself n dangerous thing. 

(1871) L. li. 3 A. 4; E. 466, a 
brig by negligent navigation ran 
into a bark, and disabled her; the 
bar! was driven on shore; held 
that the owners of the brig wore 
liable for injury ensuing from the 
wreck of the bark to persons on 
board her. 


<lu".agi., ^ boi„R lU: direct con«quon™ of tho flrrt default 
«I..<1. rendered tho vessel unnmnagoablo. 

>So„.eH.i„g like ,hi». ,„t not .0 »i„,plo, wa, i^aSSiv. i,«. v. 
■\Md<n (y, when, tho owner of a horw and eart left then, -'""""■ 
""watehed .n the str«., ; some ehildren , an,e up and began 
Pluying about the nu., and a« one of the,,,, the plaintiff 
I" the cause, ,vas di„,bing into the .art another |,ul!ed the 
l|""os bridle, the hor«, moved on. and tho plaintilT fell 
>l»«n under the ,vh.^.l of tho cart and ,v«, hurt The 
owner «ho hud left tho eart and horse unattended was 
I"; d l,ab e for th,» .njury. The Court thought it strietlv 
w.thm the province of a jury "to pronounce on all tim 
c.rc„mstanc,.«, whether th.Mlefondanf, eonJuet was want- 
...? .n ordinary care, and the ham, to the phnntid »„ch a 
<<'^»H ol ,t as mi-ht have Ik^mi expected " (.-;. 

■!l) 1 Q. Jl. ■2\>, 111 I,. .1. ,) I, 
'■'■ " ''•■ «• m (ISlj;; „p. 
proved l,y C. A., /l„rr,J,l V. 
Il„l„c^ [I898J 2 (j. li. 320, 07 
)•■ J- Q. U. 771; ihi, uai not 
"II li 11 strong mac 1 Die Jofcmlmit 
liati u fcnro boun.iinjt a liiKhwoy, 
wliich was so inacfuro as tu be a 
nuisance; the plaintiff, a small 
cl.iM, was hurt bjr |l,c fence 
fiilliiiB wbon ho put his toot on 
iw; and cp. Cl'irk v, Chumtifrs 
i (J- I!. U, at p. 331. 

;,-j This case was relied on in 
Jlassaohnectls in foiidl v. 
"""i>"J (1849) 3 Lu.h. 300', 
whore tho dcfcndanl's tru k had, 
contrary to loial re-ulalions, 
been left out in tho street for the 
night, the shaft* being shored up 
and projocliiig into the road; a 
ic=ond truck wat similarly ploecd 
on the opposite side of the road; 

Hie driver of a third truil:, en- 
deavouring with due caution, as 
it was found, to drive past 
llirough the narrowed fairw.iv 
llius left, struck the shufti of tlii- 
defendant's Iruck, whi.h whirl, d 
round and struck and injured ihe 
plaintiff, who was on tho side- 
walk. Held that tho defendant 
was liable. If tlie ease had been 
that the .hafts of the truck rc- 
■naincd on the sidewalk, ,„,d the 
plaintiff af;er«anls stumLl.d on 
t leni in tho dark, it would be an 
almost o.«act parallel tu Chrk y 
Chai.iber, (3 Q. ij. D. 337^ jj 
I- J. y. U. 427; see p. io below). 
lyiu-h V. _V,„,;,„ has also been 
approved and followed in tho 
Sup. Ct. U. s.; see f„,„„ .,.,„. 
"y- V. McUoMld (1S93) 15'> 
V. S. 262. 





J:25 i 1.4 

U£ 1 2.0 





IG53 Eoit Main SlrHt 
Rochntir. Ham Torh T 
(716) 482 -0300 - Pfion 
(716) JSe- 5989 - Fo. 



Ill a lat<u' 01180 tho drivor of a traclosnmn's cart, who 
liiij instructions not to leave tho cart, had with him a lad 
ifliiorant of driving, whose only duty was to deliver jjarcols , 
The driver went into a house to get oil for his lamp, and 
tlie hoy drove the cart round, meaning to have it ready 
for turning back. In so doing ho ran into the plaintills 
carriage. It was held that tho driver's oiiginal "iugligcnci^ 
ttt. leaving till; cart was tho "cHeetivo cause" of the 
flaniage, and his employer was therefore liable {a) . iic£:li- 
:<u«ce, however,, must ho prw cd . A railway company 
docs not insure the public against every kind of damage, 
known or unknown, that may result from trospassor.s 
meddling with its rolling stock {b). 

ouAt' V. 
.-. W. Jl. 
f htlmd. 

I But a railway company has boon held liable for injury 
feultercd by a child in playing with an insecure turntable, 
fihildren being accustomed so to play in circumstances 
jvvhicli, in tho unanimous opinion of the House of Lords, 
ii mounted to evidence, though not strong evidence, of 
leave and licence. The decision proceeded e-xjiressly on 
tho ground that the children were not trespassers hut (as 
the jury had in elfoct found) licensees (c) ; and thus the 
only difference hetweou this case and Lynch v. Xitrdin{th 
is that there tho children, though trespassers as regards tlie 
cart and horse, had a right to he on the highway, and 
here they could rely only on a bare lioonco. In cither 
case an adult so meddling with the defendant's ]n-opert\- 

(o) Enrjelhnit v. I'arnnt ij- 
Co. (1897 I 1 Q. li. 210, (iOL. J. 
Q. B. 122, C. .\. 

(h) McDomill V. G. If. Jl. 
Co. [1903J 2 K. B. 331, 72 L.J. 
K. B. 652, C. A. lloro llio C. A. 
pointed out that the prcL-autions 

suf,'|re?ted by tile pitiintiff'-s eoun- 
Koi would not neetvss.iriiy or pro- 
ijably iiave been more elfcetual 
tlian tiio.sp in fart adopted. 

(c) Cool.;! V. MhllamI <!. W. 11. 
of Ircliu.i fl909| A. C. 229. 

it\) Note (^J, last page. 


«l'ow ,vl„.,..: '^. ''"'■ "'"'" ■» "•" "^'"•.- it rail..,, ,v,l, 

I-W-™,h /ir'''™"- ,""'■"'- '■-!- into „ 

vicious,/ ,"" ■;'?-'"' kn-w 'ho h„,.»„ ,„ ,; 

^'-i«.,;„, ::::"';"'''■"' '""^-p-'i^ 1-0 f,.„,,, 

but into ,m „di„i„i„. . ;' f''"""™.v»"<'t.nlolhe™Kl 


whosi, (lilt,- it ,v„ ,„ , ■ . . , ™"^ ""^ I'Tson 


K .»rd, ,l,al there w,„ in tuvt 
evd.nro of „ n,,.,,,.,. ,|„,., „„t 

/'■;'°'''';'' ""y S-'™""! n,U: ,„„1 i, 
|.f autl,or,t.v „„ly i„ ,,0,,,,,. ,i,„i_ 

;i'ir.mi,m,tai,r,.,:i,,, « that „ 

I vord,ct th» other „..j. ^„„|j „„t 
iMVe bee,, dirturW (,.,. ||»|,9| 
'^- C. "t l.p, 233, 212), Thela- 
monled and very learned llr 
iicven, however, wa, »„ ,tronrfv 
"gainst the deel»i„„ that h"e 
-ttaeked it i„ „„ „,,|,„,,,„ 
pamphlet (The House of Lords 
"", "■" I'"' "f trespass to 
r™lty and children as tres- 

'"'""'■ i-""<i- ma). II 1, „„t 

now arguable, if it ever was, that 
a lieensec has no right at all. In 
«■ Jt. Co. V. ,s;„„i (,8j3^ jy 

;^'^-»7,,„eS„pren.e Court of 
'"•■'- »:I"<1. ha, been „,uel, 
•";-«'.'"-l".«riea, and not 
t""o«ed m ,„n,e States. (See 

<■ U- -N. S. UO. 32 I,, .r (- p 
»»■ I •■""Ot know how tore,™; 
' "' "'" •'"'■'■'i™ with the wider 
"""""° °' ""'■""y P"f«red l!; 
"oven and ,o,„e learned Ameri- 
enn writers. 

f') ^™ V. Hi,,,, (,8g. 
f- li. N.S. 722, 31 L.J. c p 
-12. Both deeision, were unani^ 
"•OM,a„Jtw„j„,| J, 

"-J Keating J.) took part ,„ 
I"""!. (>. .E«„ V. /.„/,„, , 

casen of 
Hnd lia- 
hiiitj' : 

'-W' V. 

I-te V. 




Sy. Co. V. 

The leading case of JlfelrflscZt/oafij/. Co, v. Jagklon {h) 
is in truth of this class, though the problem arose and was 
considered, in form, upon the question whether there 
was any evidence of nogligcnoe. The plaintiB waa a 
[lassenger in a carriage already over-full. As the train 
was stopping at a st."tion, ho stood up to resist yet other 
persona who had opened the door and tried to press in. 
While ho was thus standing, and the door was open, the 
tniin moved on. Ho laid his hand on the d' ir-lintel 
for support, and at tlie same moment a porter eamo up, 
turned off the intruders, and quickly shut tho dix)r in 
the usual uii-nner. Tho plaintiff's thumb Mas cauglit by 
the door a& - -iwd. After much difference of opinion 
in tho CourLS below, mainly due to a too literal fol- 
lowing of certain previous authorities, the House of Lords 
unanimously held that, assuming the failure to prevent 
overcrowding to bo negligcnoc on tho company's part, tho 
hurt suffered by the plaintiff was not nearly or certainly 
enough eonnected with it to give him a cause of action. 
It was an accident which might no less have happened if 
tho carriage had not been overcrowded at all. 

for con- 
of iiniiMU; 
Htate t)f 
tbin^H : 
Bhjlh V. 
«■(..*. (■«. 

Unusual conditions brought about by scvcto frost have 
more than once been the occasion of accidents on which 
untenable claims for compensation have been founded, tho 
Courts holding that tho mishap was not such as the party 
charged with it by his negligence could reasonably 
be expected to provide against. In tho memorable 
"Crimean winter" of 1851-3 a fire-plug attached to 
one of tho mains of tho Birmingham Waterworks 

C. P. 21; llidt'strait V. Grcijory 
[189JJ 1 (i. li. 561, CI L, J, 
(i. B. 415, u case OH tlio border- 
line, per Wilis J. 

(/.) 3 App. Ca. 193, 47 L. J. 
C. P. 303 (1877;. Cp. Cohb V. 

a. ■;•. .';. r^. [ISMJ i Q. li. lou, 

62 L, J. Q. I!. 335. 


Company was Juranged by tlio host. tin. ,.»cpansioii of 
suporliciul ice loreing out tliu plug, us it uttenvards 
seemed, and the watc.- from the main l>eing dammed In 
incrusted ice and snow above. Tlie escaping water found 
lits way through the ground into the cellar of a private 
Ihouse, and the occupier sought to recover from the 
company for tlio damage. The Court held that the 
accident was manifestly an extraordinary one. iind beyond 
any such foresight as could be reasonably required (i;. 
Here nothing was alleged aji constituting a wrong on the 
company's part beyond the more fact that they did not 
take extraordinary precautions. 

The later case of SMu X- PmM (k) gp<« fart' , as «„.,,, 

the story begins with an act on the defendant's pa ■ hich ''"""' 
was a clear breach of the law. He caused his van to be 
washed in a public street, contrar" to the Metropolitan 
Police Act. The water ran dow,. , tu-r, and would in 
fact (/) (but for a liard frost v lac. .ad then set in for 
some time) have run harmlesfly down a grating into the 
sewer, at a corner somi.. twenty -five yards from where tlic 
van was washed. As it happened, the grating was 
frozen over, the water spread out and froze into a sheet 
of ice, and a led horse of the plaintiff's slipped thereon 
and broke its knoe. It did not appear that the defendant 
or his servants knew of the stoppage of the grating. 
(The Court thought the damage was not "within thi> 
'ordinary consequences " (m) of such an act as the defeji- 



(i) fUtt^li. — Tu — UUmimliiLm 

iratr.ncorka Co. (ISoOj 11 Ex. 
7S1, ij L. J. Ex. 212. 
lOo U. H. 7S1. Tlio qui.s- 
(tion was not really of rcmotuness 
lof damage, but wliether there was 
li'.ny evidence of negligence at all; 
nevertlieless the ease U inatrue- 
tive for eoniparisoii with the 
■Jthei-a here eitcd. Cp. Mayno on 
P. T. 

to the first 


(*J L. 1!. 7 C. P. 2.-);i, II 
I.. J. C. 1'. 95 (1872). If lleivii 
and I'rol. .lor.iniah .Smith arv 
right, tJiis eaae alao must be 

(.1) So the Court found, having 
power to draw iiiferemci of fact. 

t"0 tirove J. 



if the 
name rule 
huldH for 

WTong ; 
Clark V. 


dant's, not "one which the defnndant could iairly be 
expected to anticipate as likely to ensue from his act " (n) : 
ho "could not reasonably be expected to foresee that the 
water would accumulate and fmae at the spot where the 
accident happened" (o). 

Some doubt appears to be cast on the rule thus laid 
(down -which, it is admitted, is the right one— by what 
was said a few years later in ClatL.SL..Clw3aliars{v:. 
though not by the decision itself. This case raises the 
question MdwibBr the Uability of a. wrong-doer may not 
osteail.even to remote and unlikely consequences where 
»>,.. nrigiii,,! wroug is a wilful trespass, afccpnjisjsjn the 
uala.wM or careless use of a dangerous instrument. The 
main facts were as follows: — 

1. The defendant without authority set a barrier, partly 
armed witb spikes (chevaux-de-fris?), across a road subject 
to other persons' right of way. An opening was at most 
times left in the middle of the barrier, and was there at 
the time when the mischief happened. 

2. The plaintiff wont after dark along this road and 
through the opening, by Lho invitation of thi> occupier 
of one of the houses to which the right of using the road 
belonged, anil iu order to get to that house. 

3. Some one, not tlie defendant or any one authorized 
by him, had removed one of the chevanx-de-frise barriers, 
and set it on end on the footpath. It was suggested, but 
not proved, that tliis was done by a person entitled to 
use the road, in exercise of his right to remove the 
unlawful obstruction. 

4. Returning later in the i.v<>ning from his friond'.s 
house, the plaintiff, after safely passing through th • 
central opening above mentioned, turned on to the 

(«) Kcatinf? J. 
(o) Bovill C. J. 

(;,) 3 «. Ji. L>. 3i7, « L. J. 
(J. B. 427 (1878). 


footpath. Ho there came against the chevaux-de-fri* 
thus displaced (which he could not see, t,.e night Winif 
very dark), and one of the spikes put out his eye 

After a verdict for the plaintiff the case was reserved 
for further consideratir „nd the Court r,) held that 
the damage was nea ,.„ough conneet«l ,vith the 
defendants first wron . act -namely . obstructing the 
road instruments dangerous to people lawfullv 
using it-for the plaintiff to bo entitle,! to judgment 
It IS not obvious why and how, if the eoasecpionce in 
Ctorft V. Cluxmbns waa natural and probable enough to 
justify a verdict for the plaintiff, that in Sharp v Pmaell 
was too remote to 1« submitted to a ,urv at all The 
Court did not dispute the cori..ctn.«s of the judgments 
m Sharp v. Pmodl "as applicable to the circumstances 
of the particular case;" but their final observations fr 
bcrtainly tend to the opinion that in a case of active 
^rong-doing the rule is different. Such an opinion, it is 
Nbmitted, IS against the general weight of authorit,- 
tend against the principles underlying the authoriti-^s (, ' 
However, tlieir conclusion may be supported, ami mav 
have been to some extent determine, by the special rub- 
imposing the duty of what has been call«l •'consummate 
caution o„ persons dealing with dangerous instruments. 

Perhaps the real solution is that here, as in Hill v Xew 
River Co. (0, the kind of harm which in fact happened 


(^) (.'Oi'khurn ('. J. ant! Maiii^tv 
J. The point chiefly argued for 
the defoiiilant seems to iiave hern 
that the intervention of a third 
person's aet prevented him from 
tfeinft liable; a position which is 
i-lcarly untenable (sec Scot! v, 
fhrphcrd); but the judRmont is 
of wider scope. 

"■) 3 a. Ji, D. at p. 338. 

(«J Compare the cases on 
slander collected in the notes to 
''iWra V. iniccei-,, 2 8m. L. C. 
Compare also, as to consiijucntial 
liability for disregard of .statu- 
tory provisions, &'o,t/-v v .sv ■/ 
(1874) L. B. 9 Ek. 12.5, 13 i ., 
Ex. 29. 
C.I P. 12, above 

i 'oflse- 
natural in 



not io 



for " uer- 
Toua or 
8hock " 
too re- 


might have been expected, though the precise manner in 
which it happened was determined by an extraneous 
accident. If in this case tho spikee had not been 
disturbed, and the plaintiff had in the dark missed 
the free space left in the barrier, and run against the 
J spiked part of it, the defendant's liability could not have 
■ been disputed. As it was, tlic obstruction was not exactly 
where the defendant had put it, but still it was an 
obstruction to timt road which had been wrongfully 
brought there by him. He had put it in the plaintiff's 
way no less than Shepherd put his squib in the way of 
striking Scott; whereas in Sharp v. Powell the mischief 
was not of a kind which the defendant had any reason to 

The turn taken by the discussion in Clark v. Chambers 
was, in this view, uimocessary, and it is to be regretted 
that a considered judgment was delivered in a form 
tending to unsettle an accepted rule without putting 
anything uciinite in its place. On the whole, I submit 
that, whether Clerk v. Chambers can stand with it or 
not, both principle and tho current of authority concur 
to maintain the law as declared in Sharp v. Powell. 

Where a wrongful or negligent act of A. threatening 
Z. with immediate bodily hurt, but not causing such hurt, 
produces in Z. a sudd ii terror or "nervous shock," from 
which bodily illness afterwards ensues, is this damage too 
remote to enter into the measure of damages if A.'s act 
was an absolute wrong, or to give Z. a cause of action if 
actual damage is the gist of the action? The Judicial 
Committee decided in 1888 i?t) that such consequences are 
too remote; but it is ■ abmittod that tho decision is not 
satisfactory. A husband and wife were driving in a 

[u] t'icloriiin Jtailitati" t'oiiiim 
P. ('. «i'. 

■f V. VouildH, la App. Ca. 222, .'.7 L. J. 



train, «l,ic, '1 ^^'' ""™' ""' """• ^ """ th 

back of t : r ^u'nVtT T r^'' ""'^'" "'°- '^ ">« 
there f,.i„M Id f, ""' '<""'''■'■ 'l'l"> wife then and 

Court below ■..t,r;r;''°"V" ""■ ""■"""''■"" "f '"« 
from the fright al"r"-M " "'"■" '""■™''' «''«'= 
wards sufferL Z H "^ '™"' "'"'^'' "•>'• "f'- 

emotion of tho ,„i , , '^''''""' "^ ''■"•■ '■'' '"'>- ""- 

it, cannot in itse " ! T"'''""''" "'''»'' »"«es 

damage; and th I, T"'"" " """^'"''"''» '-"Po^al 

■■montalinjur^ • 1 ,v ' "■ "' ''""■"' ''""'"^'^ ^^ 
e«em to havo trite 1 hT™"" ^ut their lordship, 

ther propos tiott , " , n""'''' "'™'^-^ "'^ f-- 
fear fs on tl^ sam fSf rrZ""''^ '' ^^'^""""^ 
true question would ZTf„ , T t" """ '""""• '^^l'" 
the plaintiff JITZI,^, ^ f T' "■"' '"" '" ■''''' 
negligentconductwas^uol. inttr ' ^^■™''"' " 
naturally be suffered by p^L „ J;",™-''— ■ -uld 

temper, and such as mighT the ""^ ""''"^ ""'' 

probably lead in thr I "hereupon naturally and 



(.') It U by nu mean, clear lliat 
>"=l. -va, the i„e„„tio„ or effoct. 
See tlio report, 12 V. L. ]! sM 

back ,„,J,e„,d Germanic n,«i 
of a txeJ scale of compe„Mlion, 
So, iis rog,irdi the me,„uro of 

""""f "■''«" lial^nitj. i, not 
<lcn.e.l, ,1,0 defend,,,,! ha, to take 

'" "'"""•' •" <!'« l-r-on di-abled 
."""»•' » ""I"""", or a tradesman 
m ,. ,,„an „,j,, „ , ^ 

»ith a larifc practice. 


!l if 


unlikely oonscquenoo, Lut because it can be proved and 
measured onlv by physical officU. The opinio: . the 
Judicial Committer, outside the Sl^.te of Victoria, is as 
extra-judicial as the contrary and it is submitted) better 
opiuiou expressed in two places (:} by Sir James Stephen 
as to tlie possible commission ol murder or manslaughter 
by the wilful or recklese infliction of " nervous shock," or 
a later contrary decision in Ireland (a). And if the 
reasoning of the Judicial Committee be correct, it become* 
rather difficult to »ee on principle asHault without 
ibatterv is an actionable wrong (n) ■ The decision ha« l)een 
disapproved by Wright J. (fc . and by Kennedy and 
Phillimore JJ. {c,. It is perhaps safe to say that, oven 
if the actual decision of tlie Judicial Committer can be 
supported on the facts before their lordships, it cannot be 
relied on in an English Court as laying down any general 
rule {d) 

(z> Dig. Cr. Law, iioti! to art. 
221; Hiat, Cr. Law, iii. 5. 

(ff) Cp. Mr. Beven's critioiani 
of this case, N'egligt'nco in Law, 
1. 76, 84. A» lie justly point* 
out, it has never been questioned 
that an action may lie for damage 
done by an animal which has been 
trightened by the defendant's 
negligent act: Manchtttfr South 
Jn. R. Co. V. Fullnrion (1863) 
14 C. B. X. S. 51; Simkin v. L. 
i y. ir. H. Co. C18S8J 21 Q. B. 
Div. 463, 69 L. T. 797; Broun v. 
Maltern unit mdlaudx R. I'o. 
(1889) 22 Q. B. Uiv. 391, 58 
L. J. (J. B. 212. Tlio Kschoquer 
Division in Ireland has refused to 
folow this doctrine of the Judi- 
cia Committee; Bfll v. U. -V. R. 
Co. (1890) 21) L. R. Ir. 428. And 
tee Ames, Sol. Ca. on Torts, 15, 
16. In Pugk V. L. B. j S. f. 
B. Co. [1896] 2 Q. B. 248, 65 
L. J. Q. B, 621, the C. A. avoided 

exprcfls'ing any opinion on the 
point. In Now Yorli, however, a 
similar ease hat lieen decided in 
eecordanco with the Judicial 
Committee's view: MitchcU v. 
tt. II. Co. (1896) 151 N. Y. 107; 
and tlie same line has been taken 
in Mimachusetts: ,s>«i« v. iy»>i 
^ Boilon R. R. (1897) 188 Mass. 
285. The American decisions are 
considered in Didieu v. Whitu ^ 
Sons, note (o) lie'.ow. 

(t) irak<mon v. Dounton 
[1897 I 2 Q. B. 57,66L. J. Q. B. 

(c) lliiliiii v. Whiu i Som 
[1901 J 2 K. B. 669, 70 L. J. 
K . B . 837 . IM.illimorc .i . thought 
it material tliat the plaintiff was 
not on the highway but in her 
house. We venture to think this 
II needless refinement. 

i^d) See Muyne on Damages, 
7th ed. 51 -55. 



I. Limitutvyn'* of Prrmnal f'apacitif. 

In the law of contract various grounds of personal dis- 
ability havo to bo .ionsidered with soini eun(. Infanta, 
married women, lunatics, arc in Jiffirent degrtcM and 
for different reasons incapable of the duties and rights 
arising out of oontrttct«. In tlie law of tort it is other- 
wise. Geu«rally speaking, tlicre is no limit to personal 
capacity either in becoming liable for eivii injuries, or 
in the power of obtuiiiing retlresH for tlieni. It soenis 
on principle that where ii pai'tieular intention, knowledge, 
or state of mind in the jwrson clmrgcHl as a wrong-doer 
is an element, us it Moinetime.s is. in constituting tlie 
alleged wrong, the age and mental eapucity of the person 
may and should be taken into account along with other 
rt}levant circumstaneeej in order to ascertain as a fact 
whether that intention, kI.owl(^dge, or state cf mind was 
preeout. But in every case it would bo a question of fact, 
and no exception to the general rule would l)e et^tablished 
or propounded (tf^, . An idiot would scarcely Iw held 
answerable for in 'oherent words of vituperation, though, 


aa a rule, 
teml ill 
law of 
tort: but 
in fact 
may be 

(«J LIpiiin, ill U. y, 2, ad. 
le^. Aquil. 5, <^ 2. Quaeriiima, 
Hi furioijus (iamnuin dederit, un 
legia Ai£uiliau actio uit? Et 
Pcgosiu) negavit: 41100 cnim in eti 
culpa »n, cum »uae nu'ntin non 

sit? Kt Ii(jt' fiat' veriHsimum. 
.. . . iluoC. Hi iiiipubcii Id fecerit, 
Laufo ait, quia furti tenetur, 
tencri vt Aquilia cum: et hoc 
puto vcrum, si ait iam iniuriae 
i»ipax . 

- i. 





-10.1 b 

V a 



they iiiiji;tit )>:' 


. But 



JH would 



u t 

loniiriiiitijiu; ulio 

si Il 


lihollouH {)imt-«ui-(lM to nil the pt'oplr ulm Imd ivt'iisi'd oi- 
iii'glivli'il. suy t(i Kuppl.v liini with hiiuls to riTuvi-r tlio 
Crouii (if Knf*'liiii(l. Tlic iinioiiiit of iiiiiiiii|Lj;<>p« ri-cDvcrcd 
might In- reduct'd In rciimm nl' thv fividunt itiHigniticaiK-ti 
of eucti lilicl.s; but thut would Ik> all- A^^aiii. a nicn^ 
child could not l)i> held aottountublo for not using the 
discretion of a man; hut an infant in ciTtainly liable for 
uU wrongs of omission as woll a& of commission in matters 
where he was, in thr common phrase, old enough to know 
better. It is a nmttor of common sense, just as we do not 
expect of n Mind man the same actions or readiness to act 
as of a seeing man. It has Iwen hchl in New Zealand {h} 
that a lunatic is civilly liable for jussault (presunmblv, 
therefore, for anv kind of trespass; I'ven if he is uncon- 
scious of the nature end eonsoquencfs of his acts and in- 
capable of understanding them. This, it is sul>mitted, 
is erroneous in principle iind not required bv any English 
authority. The defence is not tliat tlie actor was insane, 
but that there was no real voluntary act at all. Liability 
can be imposed in such a case only on the obsolete theory 
(to be considei-ed in Chiip. IV. below that inevitable acci- 
dent is no excuse. Difliculliesof any degree may, no doubt, 
'have to bo frvcod in determining whether a given act was 
voluntary. But they may se.'m less formidabh' if wo 
boar in minil that it is essentially a quistion of fact, and 
that the burden of jiroof is on I ho party who alleges 
abnormal conditions. It is by no means suggested that 

19 detuiied comiiK'nt on tlio X. Z. 
rt case l)y 11. Dean HainfurJ, 

(6) Huuuum \^ JUuuuuIk: 
N. Z. L. It. ;!89. The Cmrt 
Hcomx to liavo liccn iiitlmnrcd l>y 
Americiin deriHi'>n-», wliirli, Imw- 
ever, arc not approved by at least 
one learned Ameru'an critic, Kur- 
dick on Torts, 60, 61. And hco 

Cuninionweiilth Law iivv, iv. 3. 
Would tlie New Zealand Court 

lold a doliriou* fever patient 

iabU'V If not. why nntl' 


M,m, tl„.v „r,! n.or<. e««ily ,,>nv,(,.,|. 
M. .mil nlir.,i (.nomic*, ,„„| n,,,,,,,,.,,! ,,vr..„,i,„„ »PP«"»t 

A ocmvict^J felon „.|,o«,. «,„„.„,„ ;, 

'■tpirod, and „hoi; '^T^- uTT " '!' '""'' "'"' ""- '^T';" 

'■■cc„«>,- ™„„or .„ .r ,h ■ "' 'r'^'-' "'"'"' -">■ "-'- 

"^•'t.o...,„n,a^,„,„„^;,'!r --7;^,;;^ ->■-".-.•, 

sui' ill !is „wn liL'ht ,■ n , '■'"•"i.v.innot 

"Porution nMlti :"?;'"'''''■'''■"'■'■ '^'^ '' ">» 
seems bv H,„ I-im.tations s„8p,.n,|,.,|. it 

seems, M t|,o personal disability (<J) 

»n infant «,„ld „„t ,„. „,„,,„ ,.„^,^ ,,Ut "^ ' " " 
a ^. , f contract .Mninun, the a';";::,.; 

principle "ooe to tl.IT . — -"aMaO ,c, . And tlie 

'full at in '" " ''"■" """"""■"' "-^ '- - "'■ 

Infaiiti ; 
"iin tract 
nut to be 
by niing 
tit tort. 

(«; 33 .t 3i \it.,. c. 2;) „ 8 

30. Can ho .no for an injunc' 
ttoni. Or for a di,,olotio„ „f 
marriaKO or judicial scpuration'- 

(1856) • H. <. N. 178, 25 L.T 
Jlx. 313 (alien enemy; tile law 
""" "« "'« »"ino of a conviclj. 

(')X T. K. 335. 4 H. fi. 680, 

'■""""' (1851; 9 Ex. 422 23 I I 

i:.v. 16.-J, 9(1 11. K. 778. 

(/; ■fa^ WM i V f ie. 1 Sid. 2.58, 
^-- Sec (he report fully cited by 
Knight JJruce V.-C. (1817', i„ 


Limit** Lif 
the ruli' : 


But where an infant commits u wionn ol; whicli a con- 
tract, or the obtaining of something undef a contract, is 
the occasion, but only the occasion, he is liable. In 
fjyrnnrd v. Uaggisi(a). the defendant in the County Court, 
an infant undergraduate, hired a horse for riding on the 
express condition that it was not to be used for jumping; 
he went out with a friend who rode tliis horse by his desire, 
and, making a cut across country, they jumped divers 
hedges and ditches, and the horse staked itself on a fence 
and was fatally injured. Having thus caused the horse 
to be used in a manner wholly unauthorized by its owner, 
the defendant was held to hav(> coumiittcd a mere trespass 
or 'independent tort "(A), fo'' «'"i^'' ''" ^^"^ ''"''''^ '" ''"' 
owner apart from any question of contract, just as if he 
had mounted and ridden the horse without hiring oi K'ave. 

Infant Also it has been eBlablished by various decisions in 

Ske^-' ""5 Court of Chancery that "au_.ijifant cannot take 

T»ut»geaf aikuutagfi of his own fraud;" that is, he may be 

fraud*" fcompelled to specitic restitution, where that is possible, 

Lf anything ho has obtained by deceit, nor can he hold 

Cther persons liable for acts done on the faith of his false 

Ltatcn.cnt, which would have been duly done if the 

!statemcnt had been true (i). Thus, wliere an infant had 

jobtained a lease of a furnished house by representing 

ihiniscH as a responsible person and of full age, the lease 

Stiketmn v. Uaatoti, 1 De tJ. A: 
Sm. at p. 113, and cp. tho re- 
marlB at p. 110; 75 It. K. at 
pp. 61, 64. 

(y> 14 C. B. N. S. 43, 32 L. J. 
C. P. 189 (1863). 

(h) See per Wilier J. If tiie 
bailment iiad been at will, tlie 
defendant's act would liavo wliolljr 
determined the bailment, and 

under tlie old forms of pleading* 
lie would bave been liable at the 
owner's election in case or in 
trespass rt ft armm. Bee Litt. 
s. 71. 

12 Ch. D. 675; and ace other 
casei in the writer's " I'rinciples 
of Contract," pp. 81), 81, 8th ed. 


was declared void, and the lessor to be eutitlod to delivery 
of poesession, and to an injunction to restrain the lessee 

: from dealing with the furniture and effecta, but not to 

-damages for use and occupation (k). 

As to married women, a married woman was bv the MimiiJ 
common law incapable of binding herself by contract, and tCZm. 
therefore, like an infant, she could not bo made liable "'™1»»'- 
OS for a wrong in an action for deceit or the like, when 
this would have in substance amounted t(j making her 
liable on a contract (i). In other lases of wrong 
(including, as with infants, wrongs of which a contract 
was only the occasion) (m) she was not under any 
disability, nor had she any immunity: but she liad to sue 
and be sued jointly with her husband, inasnmeh us her 
property was the husband's; and the husband got the 
benefit of a favourable judgment and was liable to the 
consequences of an adverse one. 

Since the Married Women's Property Act, 1882, a Married 
married woman can acquire and hold separate property 5!J!^" 
in her own name, and sue and be sued without joining ''^'*' '**^- 
her husband. If she is sued alone, damages mid costs 
recovered against her are payable out of her sei)arate 
property (n). If a husband and wife sue jointly for 
personal injuries to the wife, the damages recovered are 
the wife's separate property (o). She may sue her own 

(k) Sep note (i), p. 58, $iii>ro. 

{i) Fairhurft V. Liverpool- 
Adelphi Loan Aegoeiation (1854; 
9 Ex. 422, 2.3 L. .1. Ki. 163. 9li 
E. E. 77S. 

(m) Earlr v. liihiJDCotf | 19U0J 
2 Ch. S85, 69 L. J. Cli. 725, (J. A. 

C») 45 k 4li Vict. c. 75, s. 1. 
Ab to the right of action, and the 
operation of the Statute of Limi- 

tation, on a oauae of action which before tlio Act came into 
operation, see WHdon v. irinifow 

(1884) 13 Q. D. Div. 784. 53 
L. J. Q. B. 528; Lone v. Fox 

(1885) 15 Q. 1!. Div. 6(i7, 54 
L. J. Q. B. 561. 

(o) Beailcij v. Ilomi/ [1891 1 1 
Q. B. 509, 60 L. J. Q. B. 408. 



husband, it necessary, " for the protection and sciurity of 
her own separate property;" but otherwise actions for 
a tort between luisband and wife cannot be entertained(p) . 
That is, a wife may sue her husband in an action which 
under the old forms of pleading would have been trover 
for the recovery of her goods, or for a trespass or nuisance 
to land held by her as licr separate property; but she 
may not sue him in a civil action for a personal wrong 
such as assault, libel, or injury by negligence. Divorce 
jdoes not enable the divorced wife to sue her husband for 
t personal tort committed during the coverture (g) . There 
is not anything in the Act to prevent a husband and wife 
from suing or being sued jointly according to the old 
practice; the husband is not relieved from liability for 
wrongs committed by the wife during coverture, and may 
still be joined as a defendant at need (r). If husband 
and wife are now jointly sued for the wife's wrong, and 
execution issues against the husband's property, a ques- 
tion may possibly be raised whether the husband is 
entitled to indemnity from the wife's separate property, 
if in fact she has any (s) . 

There is some authority for the doctrine that by the 

law lia- 
bility of 


(p) Sect. 12. A trespasser on 
the wife's aepiirato property can- 
not justify under the huaband'a 
authority. Whether the husband 
himself eould justify entering a 
house, his wife's separate pro- 
perty, aciiuired m sui-li before or 
•ince the Act, in which she is 
living apart, quare: U'eldon v. 
De Bathe (1884) 14 Q. B. Div. 
339, 54 L. J. Q. B. 113. 

(9) Vhillipa V. Barncl (1876) 
1 Q. B. Div. 435, 45 L. J. Q- B. 

(r) Seroka v. Kaltmbiiig 
(1886) 17 Q. B. Div. 177, 55 
L. J. Q. B. 375, approved in 
C. A. Earle v. Kingscote [1900] 
2Ch. 585,69L. J. Ch. 725: these 
detiaions are now binding on the 
Court of Appeal though not ap- 
proved by all its membera: eee 
Vuenod V. L^tlic [1909] 1 K. B. 
880, 889, 78 L. J. K. B. 695. 

(s) Sect. 13, which expressly 
provides for ante-nuptial lia- 
bilities, is rather against the 
existence of such a right. 


foommon kv both infants «) and n.arriod wou.en («) arc i,.h„t. 
; Uable only for " actual torts " such as trespass, which were ^lie.! 
j formerly laid m pleading as contra pacem, and are not in «"™«° 
I any case liable for torts in the nature of deceit, or, in the -°o^»k 
!old phrase, in actions which " sound in dcncit." But this EoZ,^^ 
Qoea ijat seem acceptable on principle. •■""'" 


As to corporations, it is evident that personal injuries. Corpora- 
in the sense of bodily harm or olfonco, cannot be inflicted "°°"- 
upon them. Neither can a corporation be injured in 
respect of merely personal reputation. It can sue for a 
libel affecting: property, but not for a libel purporting to 
charge the corporation as a whole with corruption for 
example. The individual officers or members of the 
corporation whose action is retlected on are tiie onlv 
proper plaintiffs in such a case (a;). It would seem at 
first sight, and it was long supposed, that a corporation 
also cannot be liable for personal wrongs {,j). But this is 

(<) j Q l i m ( tn .\^Jii£, J). 57, Btiprti 
(a dictum wider than tho deci- 

(u) n-'right V. Leonurd (1861) 
11 C. B. N. S. 258, 30 L. J. 
C. P. 365, by Erie C. J. and 
Byles J., aftainat Willcs J. o.:i 
Williams J. Tho judgment of 
Wille3 J. seems to mo conclusive. 

(«) M fit/or of JUatichesfer v. 
iruiimns [1891] 1 Q. B. 94, 60 
r-. J. Q. B. 23. 

(y) Tlio difflculty felt in earlier 
limes was of process; not that a 
corporation was metaphysically 
incapable of doing wrong, but 
lliat it was not physically amen- 
able to ccipitix or exitjnit : 22 
Asa. 100, pi. 67, and other 
authorities collected by Serjeant 
Manning in the notes to Maiwil 

V. Mmmouthihire Cmiil Co 
(1842) 4 Man. i O. 432, where 
it wn. finally decided that tres- 
pass, as earlier in Yarborough ». 
Bank of Knglinid (1812) 16 East 
6, 14 R. IJ. 272, that trover 
would lie against a corporation 
aggregate. That a corporation 
may be held liable for the pub- 
lication of a libel, see WliilfiiUI 
V. S. E. R. Co. (1858) B. B. 4; 
E. 115, 27 L. J. y. B. 229 
113 n. B. 668; tho libel was 
contained in a telegram scut over 
the company's line, seemingly in 
the ordinary way of business; cp. 
f'ogg V. Z(o,(o„ „„d Uiiell j) 
Co. (1889) 148 Mass. 513, and 
SCO per Lord Dramwell, 11 App. 
Ca. at p. 254. 


really part of the larger question o£ the liability of prin- 
cipals and employers for the conduct of persons employed 
by them; for a corporation can act and become liable only 
through its agents or servants («). In that connexion we 
recur to the matter further on. 

The greatest dilficulty has been felt in those kinds of 
oases where "malice in fact "-actual ill-will or evil 
motive— has to be [iroved; but in the strongest case, that 
of malicious prosecution, the oh.ieition may now be con- 
sidered untenable (,7). 


ReBix>iisi- Where bodies of persons, incorporated or not, are in- 
Sc°' trusted with the management and maintenance of works, 
bodies for ^^ ^^^ performance of other duties of a public nature, they 
are in their corporate or quasi -corporate capacity respon- 
sible for the proper conduct of their undertakings no less 
than if they were private owners: and this whether they 
derive any profit from the undertaking or not (&). 

The san-.e principle has been applied to the management 

ment uf 
workit. &' 

(e) Tlierefore the opinion of 
Brian C. J. and the Court that a 
corporation cannot trespass, 15 
lAv. IV. 1, pi. 2 fA.D, 1476), 
was inevitable at n time when 
tlie doctrine of respoudiut supe- 
rior was etill unformed. Ob- 
viouBly a corporation, whatever 
kind of person it is, cannot tres- 
pass in its proper person. See 
I..Q.R.xxvii.233 (April. 1911). 
Qumre, wa3 it ever thought; that 
case would lie though trenpass 
would notV 

(rt) It was abandoned by toun- 
sel in Cnrnford v. Carlton Bank 
1 1900 1 1 Q. B. 22,68 L. J. Q. B. 
1020, C. A.; and in Cilizrim' 

Life Assurance Co. 


[1904] A. C. 423, 73 L. J. P. C- 
102, the Judieial Committee (Lord 
XIacnagliten, Lord Davey, Ixird 
Lindley, and Sir A. Wilson), up- 
holding an action for a libel pub- 
lished in the company's supposed 
interest by one of ita aervanta, 
Intimated a clear opinion that 
the same principle applies to 
malicious pri,-..oution. 

(b) Mersfi/ Docks Trustees v. 
Gibba (1864-6) L. R. 1 H. L. 93. 
35 L. J. Kx. 225; see the very 
full and careful opinion of the 
judges delivered by Blackburn J ., 
L. 11. 1 H. L. pp. 102 sqq., in 
which the previous authorities an- 
reviewed; The Beam [19061 
P. 4«, 75 L. J. P. 9, C. A. 


Of a public harbour by the ox«utivc government of a 
Bntish colony (c.) The rule is «ub.j,,.t, of course, to the 
.pecml statutory provisions as to liability and ron.odies 
that may exist in any particular ca8e(d). 


■i. —Effect uf aPnrhfs Death. 
We have next to consider the olfect produced on liability 
for a wrong by the death of either the person wronged or 
the wong-doer. This is one of the Ioa.,t rational part» of 
our law. The common law n-axim ,s actio personalis 
rru>ntur cum penona, or the right of action for tort is 
put an end to by the death of either partv, even if an 
action has been commenced in his lifetime. The maxim 
ris one of some antiquity, but its origin is obscure and 
Ipos -claasical (.,. Causes of action on a contract arc 
quite as much personal " in the technical sense, but, with 
the exception of promises of marriage, and (it seems) 
mjuries to the person by negligent performance of a con- 
tract the maxim does not apply to those. Iiucascs of tort 
MiJJling within statutory exceptions, to be presentlv 
men loned t^e estate of the person wronged has no claim. 
,aod that of the wrong-doer is not liable. Where an action 
;on a tort is referred to arbitration, and one of the parties 
-dies after the hearing but befo.. the making of the award 
the cause of action is extinguished notwithstanding „ 
cause in the order of reference providing for dcliverv of 
«.e award to the personal representatives of a party .Wing 
before the award is made. Such a clause is in^^nsiblc 

(c) Reg. V. Willmm^ (anptal Finh,,, .- ft.- 

I") L. B. in. L. ,07, „«. the hi'Lrlf" t'^""™' °" 

Effect ..f 

death of 



Actio per- 




I ; 

A barbftV 
0U8 rule. 

..tre«a.d to a oau. enaction in ..t,the^«-^t 

for xelerenoe being f^^^^^^^ ^ the partie. (/). 

and not extending to "l'^. „ n Uw with the modi 
^ ,ery similar rule existed in Ron^n law ;'M^^^^^^^ 

ecation that the inheritance "^ ; -"" ^^ ^^^ „fit ,, 

hie estate by dolus was ^'-"V" lit uo bat could 

. 1 1 tl,of in some cases heirs mignt sue uui. 
g„„ed, and that m ^om ^^^^ ^ ^^^^^ ^^^^^^^^ 

,,o». -tab .. .1." «• " ^,^ „. k,ui 

!..arHest English law (j). 

fV,,. nation of vengeance has been put 

personalis nmm>r cum persona seems to be 

(/; /J»„i«r V. £.„,.. (1885) 15 
(J. B. Div. 505, 54 L. J- «■ "• 

(jj I. iv. 12, Jo Pfrpo'"" " 
temporalibm actionibU!', 1. An- 
other dilletenr- in favour "' tha 
Boraan law U that death o! a 
„.rly after l^t!, <.»«(«'»("' '»"• 
not abate the action in auy oa»c. 

at lias been eonjeeturod that per- 
•„„„«,. !n the English maxun is 
nothing bnt a misreading ol 

""*) Newton C.J. in Ve.r-Bo.J< 

19 Hen. VI. 66, pi. 10 (»•=■""- 


(i) 20 Q. B. Div. 503. 


to see «hv a « rong-dcT^ o»t,.to should bo o/cmpted 
f on, n.ak,„g autisfue.ion f„.. |,i, „,-o„g«. It i, bet Jt at 

t an tl ri '"'"' "'""'" •"■ •" '"""• -»™' -' »''o 
cdro, '"V''7"r" "'•™^«' "'-"I'l b.. deprived of 
redress The legate, can „, a„,v ease take onlv what prior 

tr '7« ^'"- '■"'■• -d <"- «ill b.. „„ ha;d,hip i, ™ 
'akng subject to all obligation,, „ Micio a, ,veU al „ 
co«<r„.-7„, ,0 ,,l.ieh his testator wa. liable. Still 1 el d 
the reversal of the rule .. a just eaus.. „r eo„,plai„ i„ ttc 
case ol .estate suoeession. The,, „, ,o the'righ it 

estate, aid therefore after his death the ,v,„„<.r has 
ot u„ aeeount for. B„t this is ofte,„i,„ef noTIot 
tact. A,.J, ,„ „„y ease, ,vhy should the law, ..ontrary to 
'" °»n a„d ,„axi,.,s in other departn.cnts prl ,t ,„ favour of the wrong-doer, so to' beV „ ^'o .^ 
nught a hnost say that o^„„ yro..nuunf,. „ro .pouIlZ 
Personal wrongs, it is allowed, ,nay "operate to the e2- 
pral injury ■■ „f the personal estate, b-lt without e.p 1 
o lega ,on the Court will not intend it (A-), tl,ough in" 
case of a wrong not strictly pe„onal it is enough i ,u h 
damage appears by necessary implication /). 'The Z. 
don should ,.ather lie on the wrong-door to show ttat the 
estate has not suffered appreciable dan.age. B t t i 
need oes to pursue the argument of principl^ aga.nst a rule 

J.ehba.b..en,,,adeatalltolorabIcfor„eivil.l onl 
only by a ser,es of exceptions (,„). „f which p,.esently 

The rule is even carried to this extent, that the death of . 
a human bong cannot be n cj,„.n„f ^- ■ "'" °* Exteniion 

S <-unnot DO a cause of action in a civil Court ?' *« "do 

''-^ «... in Osbom 


W CKamhirlain v. Wmiamton 
2 M. i s. al p. 4H, 15 n. B 
at p. 297. 

P.— T. 

il) Tryr,„„ V. dmnt (1878) 4 
C. P. Div. 40, 48 L. J. c. P i 

l»<>Cp. lientlmm. Traits, de 
Li'gHlation, vol. ii. pi. 2, 0. to. 

T. Bilkti. 


for a pemon not claiming through or rcpr<«enting the per- 
son killed, who in the ca»o of an injury short of death 
would have been entitled to sue. A master can sue for 
injuries done to his servant by a wrongful act or negloet, 
Lherebv the service of the servant is lost to the ma^ter^ 
feut if the injury eauses the servant's death, it is held, and 
the Court of Appeal considers it settled by authority, that 
the masters right to eompensation is gone (n). There is 
much to be said on principle for the dissent expres«;d by 
Bramwell B. in the Court of Exchequer. At all events 
"aotio personalis n.oritur cum persona" wdl not serve in 
this case. Here the person who dies is the servant; his 
own cause of action dies with him. according to the maxim, 
and his executors cannot sue for tho benefit of his estate (o) . 
But the masters cause of action is altogether a different 
one He does not represent or claim through the servant; 
he sues in his own right, for another injury, on another 
estimation of damage; the two actions are independent, 
and recovery in the one action is no bat to recovery in the 
ott-r It is aUeged on the other hand that " the policy of 
the law refuses to recognize tho interest of one person m 
the death of another" (p -a reason which would make 
Ufe insurance and leases for lives illegal. Another and 
equally absurd reason sometimes given for the rule is 
that the value of human life is too great to be estimated 
in money: in other words, because the compensation cannot 
be adequate there shaU be no eompensation at all(g). 

(1882; 7 Can. S. C. B. 409, 468. 
(w) Under Lord Campbell's Act 
(infm, p. 69) they may have a 
right ot suit for the benefit of 
certain persona, not the estate as 

(),) L. V. 8 Ex. at p. 90, orj. 

(7) The Roman lawyers, how- 


,l,f.,i;. V. (lUlell (1873) 
L.B. 8 Ex. 88, 42 L.J. Ex.53, 
diss. Bramwell B.; Clark v. 
London Or,.rnl Omnibrn Co. 
[1906] 2 K. B. 648, 75 L. J. 
K. B. 907, C. A. Ott/oni v. 
Oilletl had already been followed 
in Canada in MoMghaii v. Horn 

- Excep. 


StatutH of 
Ed. III. 
right «( 
"ul» for 


We now pr« odtth^"'*^''^' ''■""""'''''f Lords 
n>ent wa, C„ 1 't" "^"P"""- The first amc„d- 

Item, where s in ! ^"'^'"'' ™"''»' '»"» ♦'••«: 
.-"•ons for the LI^T/T' ?^"'- ""V" -t had I 

^heir life, and so snoh tr " 7'"*°" """«• ^-"-V in 

-punished. it7it77h:: r ""'"" '-""'""' 

»«os shall have an ar Ln • "'^"'°" '" «•"■'' 

roeover damages in Lr^ ''^'""' ""' ''"'P^-- '<> 

The right was e.vprossly extend«I 
executors by 25 Ed III I , . ' '" e'^<'™tor» of 

,,to extend to administrators w" i;'':'"^,^"-'' 

include injuries to th„ „ ^ '""'^ "ot to ^ 4/; ^ 

to -extend to all other ^TZ^^Z"^^'"^ 
personal estate is shown ^^ *«" ^P"'^ "Im^ to tho 

. Then by 3_&4WiILJLV. c. 42 a d ]8■^■^^ .• 
injuries to th7real eatato";."t ^ aotionablo 

real estate of any per«,n committed within 

'"' y 

■e». I„beriim corpu. nullaD, 
focipit aealimationem- " D » a 

fV'Ti '"""'••''* ';««'i>.' 

Ln ?■'•'■"' 1»"'"'P<». 3- 
f 17 T'r \" "■" ^^ 'i^"i«. 

IM. damage, „i,;^ , 


?"t tl909] 2 K. B. 193, 78 

W See noto to Aw.<,„v „„.,, 
? ^' «»?• 89 «, vol. V. p. 161 
in 8d. 1826. 

4 r'-* dT.'°" "• "'"•' (»878) 
* t- P. Div. 40, «, 48 L. J 

(188 35Ch.I,.700,«L.J. 


IV. «. ,„ 

■"juriw to 



[ „.«„■. ctato can bo '»ade ^-^^J ,i„, .ithin h,x 

calendar montbB bclotc lu. acam ^^^^ __. ^^^,. 

uJn^'^^^-^i^o action n.u.t .^ »>-"'; „^^ „ttcr tlu-y have 

Zn^/wA ropro,ontatlvc.»^.n"^^°» ^^.th, ^,,,„t„, „£ a 
i! ^ ^ on their office Undo' th,s . ^^ ^^^ .,„„i„dorman 

tenant for life ha» »«^» J^^^ during the .onanoy ( • 
for «a.te or nnu.ance «">"' '"^ „^t„„ ,„d ■ roate, a 
« the iniury ^' ^ ^^ HT^n^torial tU... nothing 
:St: rs^: It. before tHoaoatH.. 

So light 





mutate con- 




injury canaing death, for «h.^^ ^^ ^^ ^^^^^^^^ t„ 

there is no remedy at aU. ^^^^ ^_y „„^,. 

„,aintain that damage to th pe ^^ ^^^.^j ^^^^„. 

oJ a pergonal injury, »ucl a. ox J ^^.^ ^„ ,^.„,k „, 
dance, and lo. of ^--^J^,,, .,thin tUo statute 
attend to business, ^"'^ "" « . ,,hcre the eaus. of 

of But ^t -^^^ f; ,, p„,„.C a„ a.tiou 
,.,,ion is in -^^"'™''^^" "^"l„ot be admitted on thts 
,, personal "P-^^ ' ;„ "^if , not only its conse- 

A r\ H 

' . n B Div 404, 49 L. J- 
(1880) 6 Q- B. U'"- *" 

[1897] 1 Ch. 694, 66 L. J. Cb. 

,i«M-, 9 Q. B. D. 110, 51 ^- •■■ 
(1875) L- K- "> ^- 


H»il«ay ucciclont.. toward, H„. „,idd|„ „f t|„ „i„e,„„H, Lort 

.„ k ■ '" *'"' "'" mn mod or nxluivd >»™"" 

(o imbccilitv by the nciflii,,.!,,.., ,.f •• "xiuiva ^^1,^, 

-.want, „„;i,. '"'*f"K™«' of a rauwttj- lompa,,,-, "».t«l 

«.nuaU ,mght recover h.^vy d«i„ug . If ho did "of ^"- 

"bol shiug tl... barbarou, rulo which «a« the root of tho 

1 .rsons kdlod by Accident*": it coufors a ri^ht of action 

.ch hat f death had not e„«ucd that person n.ight have 

fo. he bencht o_f tho por„„al estate, but "for the benefit 
"1 the wxfe,husband,par«nt,„nd child" ,« of tho perT 

r- ■'■ C. p. H8, « doabted, bnl 
Ul.tmKuisliod lu being on an 
iietion of contract. 

(y) Tho olllcial short titio of tho 
Act i. now Tho Fatal Accident. 
Act, 1846. It appear, ,„ havo 
been suggested by tho law of 
Scotbind, which already gave a 
remedy: sec Campbell on Negli- 
Stoncc. 20 Mnd od.); .„d BM, 
V. Midlimd Jl, Co. (185J) 18 
4. II. 93, 21 L. J. Q. B. 233, 88 
". H. S43 (in argument for 

/ <-^ Accordingly, where an alien 
/could himself have maintained an 
luction here on a cause of action 

I arising out of the iari«liction, hi. 
j reprcMntativoj can sne under the 
'Act: Dqcidn^ y, /m, (jjj,, ^ 
K. B. 606, 70 L. J. K. fl. 788 
(Kennedy and Phillimore JJ.), 
dusonling from Adam v. Brili,/, 
nnd Foreign SS. Co. [18981 2 
Q- B. 430, 67 L. J. Q. B. 844 
(Barling J.). 

«■) " Parent " includo father 
and mother, grandfather anil 
grandmother, stepfather and 
.tepmother. "Child" includes 
mn and daughter, grandson and 
granddaughter, stepson and step- 
daughter: sect. 5. It does uut 
include illegitimate children- 




L «»c«oa .c<x,«ling to tho .njary ''•» »'"«"' ';j,i„„^ 


:ron.o„..oo..eJi».a.o -^^^^^^ 

'-'' r—nVaTit thin rlnth., all or any of 
t LordTan,pboU'» Act may .ue in their own name. ',, . 

.i^o, (f„ .0 a lay reader aoc.denU '"J ^^ „„, 

^?-- ^"f f !:iifTt:n.. t '3"hc Act dc«. apply); .0. 
mcludo wilful *f-"B'' ' , , jh„ p„Hormanco of it. 

2 11. IL C. 735, 33 L. J. E«- "• 
There " no «»«•"' '° ''°"'" *S!. 
It IncludeJ an unborn Hee 
The Oeorge ond Ki'lxi'd (1871) 
L B 3 A. t E. 466, wMch, how- 
over, U not of judioial sulhorily 
„„ thi. point, Jor . few month, 
later {Smilh v. Broun (1871) 
L R 6 Q. B. 729) the Court of 
Qaccn'. Bench held in prohibition 
that the Court of Admiralty ad 
„o jurisdiction to entertain cla.m. 
under Lord Campbell'. Act; and 
„fter K)me doubt this opinion ™ 
oonBrmed by the House of Lord.: 
,.J,».»ri V. Th. rtra Cruz (1884) 

10 Anp. C». S». overruling The 
Franconia (1877) 2 P. D 163 

(4) Where a claim of thi. kind 
i. Biti.flod by payment to eic- 
euton without an action being 
brought, the Court will apportion 
the fund, in proceeding, taken 
tor that purpoM in tho rhanccry 
DivLion, in like mannei m » jury 
could have done: Bulmer v. 
Bulmcr (1883, 25 Ch. D. 409, 
63 L. J. Ch. 402. 

(c) AIM by MCt. 2, "money 
paid into Court may be paid in 
one .um, without regard to it. 
division into share." (marginal 


• cUin, un,lor Lonl (•,„„„ In I " "° '""*'''• '" 

dcoe„«d „,,.,d „„n i,. ' •''■' '" '•">»• """ 'he 

"^-tatuto . . ^:t':; ""■■"•"il-uniarvW. 

-UW Of action licvTlth,/ .*"?"""' '"'""^"""ivo a 

principle" ,/ . fi„, ..„?„;,,:,"' '"•■""' ."" « ''■■«f--nt 

r^ .vlut principk the danfa^ 1 ^ t """"'","''''"• 
*SiJ)ot tnean " r.^ j" 'l^' " '''^; " '» "''ow «hat it 

oonvcniontlv eifl the „1^ V '"'"•^''""™'' >» wo may 
created) ^' ^C^JT '^ '""'" "■« "«■" '« 
fer .«om~r^:;;.,'.''l"^ '"-"'•'in an action 

deceased, or tl,^ o«i l"^' '^'";" "»'' '""-'"« "' 'ho 
Thus the fact tha7Tt.!.T ^ '^ >^be ,howa (A). 

-t BaMt Of .Ji; zro;it; "zz 'ir 

o'ound of expectation to bo taken 



«ErleC.J.,^^,„,..6-..v A 
C». (1863) Ei. Ch. J D Is 
« p. 406. "■ 

WroHoekc.B. ;„,-,„.«„, 
'■*■■'■•«■''<' 1858) 3 H.i. V 
"P-aiS, 117R. H. 6S9. 

(1859) 4 H. 4 .V. 653, 29 L. J 
tx- 25, 118 B. R. 667. 
(y) IMfi-t.^UMimd Jt. Co. 

<:"*-52) B Q. B. 93, 21 r. , 
«■ U. 233, 88 H. H L /• 

(*) fmntliu V. J. JS' J, p„ 

(') lletheruifiton v. .V. ff » 




of Bur- 


into account in assessing the loss sustained. Fu.uTol and 
mourning expenses, however, not being tlic loss of any 
benefit that could have !«.» had by the deceased persons 
continuing in life, arc not adn.issible (frj. 

lluUntiii'csts conferred, by. the Act on the several bene- 
fi rjori.. ai-c diiliuct. It is no answer to a claim on behalf 
lof some of a's children who are left poorer that all 
Ihis children, taken a.s an undivided class, have got the 
iwholc of his property (/ . 

The ,t»t„. It IS said that the Act does not transfer to r<.presonta,- 
SS tives the right of action which the person killed would 
mrabrti- jjj,^.^, i,^j_ " ijut gives to the rcprreentativc a totally now 
™wk. Hght of action on different principles" m,. Nevertheless 
'""• .tkL-cauBiJ.of. action ^i' the same tliat if a person 

hvlw ultimately dies of injuries caused by a wrongful act 

ioLJlEglcCt ilOB ^-»'I|ted satisfaction. fni-tlKiU 10 bis 

llifetimc, an action under Lord CampbcUaAct is not 
oftcrwards maintainable ,« . For the injury sued on 
must, in the words of the Act, bi- "such a-s would, if 
death had not ensued, have entitled the party injured 
to maintain an action and recover damages in rcspeci 
thereof:" and this must mean that he might immediately 

(/j) Ballon V. N. E, 11. Co. 
(1858) 4 C. B. X. S. 296, 27 
L. J. C. P. 227, lU R. H. 726, 
doiely following Friinklm v. 
S, E. It. Co., note (^) laat page. 
8eo further as to tho proper 
dirKtiona to a jury, Rmilril v. 
L. >f -V. W. «. Co., Ex. Ch. 
(1873) L. B. 8 Ex. 221. 

(0 Pm V. U- A'....g. <■"■ 
(1863) 4 B. & S. 396, 32 L. J. 
Q. B. 377. The deceased had Bot- 
tled real estate on his eldest son. 

to whom other estates al^o passed 
as heir-at-law. As to the measure 
of damages where the deceased 
has insured his own life for tho 
direct benelit of the plaintiff, seo 
Crraud Trunk 11. of Canada v. 
leniiiuot 1 1888) 13 .\pp. Ca. 800, 
58 L. J. P. f. 1. 

(Hi) 18 Q. B. at p. 110. 

(1868) L. H. 3 (J. B. 55.-, 37 
L. J. Q. B. 278. 



LORD Campbell's act. 

^»ing knidrcl uro cntitl«l by th. connnon law to T* ■ 
'" -rr ^»-=-- •>"' »,- wa.v of J„,;„„, i';",^' 

.on rallv s.m.ia.. to Lord (,..„„b,n, ,,,,._ ,„, ^,,^; 
•''"" "-f «»-">'lv in detail, ft-on, that Act and from 
-■ anoth... The tondoney ^.n. to be to «,nfef o 
H- survuo... both in,|a,io„ an.i in judicial con 
»tn,ct,o„, hn-Kor rights than in Englan.l 

'" one ,.la«., of ca.c, the.v is „ ri.-ht to .-cover against 
^' «rong-doer's estate, notwithstanding th,. „,a.L o 
"^',o„aUs, yet not so a.s to constitnto a " 1 

™^:o„. When it eo„.es.„ the point of direct eo- 
llict, the maxim has to prevail. 

As Lord Mansfield stateu the rule, •■„Jicre pMportv 

;r;— df -'> ^™cm..,J,e testator, t.^ a T 

J^,^lue 0^ the P«iH-rty sWL,„rrive..a«aiJ 

tluL^^r • (0). Or, as Bowen L. J. „,„re fuHv 

-i;.-ossed ,t. the cases under this head are those "in 

« .eh property, or the pr-Kvcds or value of property 

Jo ong^,g to another, have been appropriated' b the' 

Joceased person and added to his „w„ estate or n.onevs " 

In such cases, masnuieh as the action brought bv the "true 

owner, ,n whatever forn,, is in substauoc to recover pro- 

porty, the actmn d«.s not die with the person, bu, 'til 
property or the proecds or value which, in the lifetin.e of 
<i.o wrong-doer, could have been recovered fron. hin, can 

KiKht to 



taken or 



' !l| 

(o) Jltmiilii Y. Taiu. 1 Cowp. 375 


limited to 
of xpecifio 
or its 
viUue : 


be traced after his death to his assets" (by s.ung the 
personal representatives) '■ and recaptured by the rightful 
owner there." But this rule is limited to the recovery ot 
specific acquisitions or their value. It does not include the 
recovery of daiuages, as such, for a wrong, though the 
wrong niav have increased the wrong-doer's estate in the 
sense of being useful to hin. or saving him expense (p). 

If \ wrongfully gets and carries away eoal from a 
mine under B.'s land, and B. sues for the value of tho 
coal and damag s, and inquiries arc directed, pending 
which A. dies, B. is entitled as against A.'s estate to the 
lvalue of the coal wrongfully taken, but not to damages 
I for the use of the passages through which the eoal was 
tearried out, nor for the injury to the mines or the surface 
of the ground consequent on A.'s workings (q). 

Agai'i., A., a manufacturer, fouls a stream with refuse 
to the damage ot B., a lower riparian owner; B. sues A., 
and pending the action, and more than six months after 
its commeneemcnt, (r) A. dies. B. has no cause of action 
against A.'s ropresenttttives, for there has been no specihc 
benefit to A.'s estate, only a wrong for which B. might in 
A.'s lifetime have recovered unliquidated damages (s). 

The like law holds of a director of a company who has 
jcommittcd himself to false representations in the pro- 
spectus, whereby persons have been induced to take shares, 
land have acquired a right of suit against the issuers. It 

(p) Tlic teclinical rule was tlmt 
executors could not bo sued in rc- 
«pe=t of an act of tlieir testator in 
bii lifetime in any form of action 
in which the plea was not guilty i 
llnmbhj v. Trolt, 1 Cowp. 376. 

(g) I'hillipi V. 7/om/rny (1883) 
24 Ch. Div. 439, 454, 52 L. J. 
Ch. 833. The authorities are 

fully examined in the judgment 
of Bowen and Cotton L. JJ. As 
to allowing interest in such cases, 
sec Phillipi V. nomfrag [1892] 1 
Ch. 465, 61 L. J. Ch. 210, C. A. 

(r) 3 t 4 Will. IV. e. 42, p. 66, 

(»j Kirk V. Todd (1882) 21 Ch. 
Div. 484, 52 L. J. Ch. 224. 


■■-t, the dicta of Sir Ue'ol T'T ' " ^"^- ^^ 'ho 
J™ti<^ „,„ ,„.,, „^ j„ „;;f./™-' and of the Lords 
-hieh U,o, felt bound to ,. r^f/' f "' "><' --» 
'"? tl,«.. approval. "* ^'"' ^™" ™mmand- 

Qn behalf and for th Cf t ^ " '" "''''' "' ''''^'' 
»'W ^.y also .cut mt. l'":°"'-(-)- But that 
» held answerable fo. wont not '" '"'"'' """^ " """' 
The rules of general a ' , , """"""*^ ^^ ''™«'lf- 
-noornin, the"liaM tv"f a^ 1" ■" ,''/ ''"' "« «>- 
of a n,a.ter for his ^e.^;' "^ C"' '"■ "' ''""^"'' ""<» 
«ponsibility goes further and ' '"■""" ™"'J'"»™ ^o- 

for wrongs whieh, a. 1 ds', "''" "^ ''-o to a„„.er 
damage, are not those of'e tte 1""'""''"'^ ^""^ "' ""= 
Thus we have eases where ,„ """f "' '"^ --""t^- 
dutj. and is held liabl . r f , "Z"''^"' '° " P^'''™ 
the absolute eharaeter f L tJ; "^''""^ ''' "-' 
'he question is not bv who^ ,."7 ^''"^ °"™ established, 



of prind- 
not excuse 

Casew o* 





L B biTV- ' ^''" ' "' y (1873) 
V s ; ■ '^^ »' P- 392. 

W C„lle„ V. «<,,„,„„.. jv„. 
<«» cn,l Ken- (18621 4 Af 

for the contract of 

2=n'y or .orvicc cannot imp«„ 
^ny obligation on the agcnt^ 
-vant ,„ co™n,it or S L 
"■o committing of fr,„j •. 
any other wrong. '*' "' 




vant. or of an " indcpo>.aent eontnutov ■ ^'J^M\^^'^ 
the iuty haa bc-n adoquatoly ,.ovt„.„,ed or not I ha • 
" ■' , . ,„ i,„ (.niwidci'i'J, and liability, it 

of non-,«rfoimanc,., i» the ground ot habil tj bpom 
duties created by .tatut.. a. condition. ^tUched to^h 

iiand ^vhe^ the condition. im,.o..><l '-y tb,- [.oRislature 
not satisfied («) 

also duties 
in nature 

There occur likci^-, in .peoiul -'■"-7-'' jj"^;^;:! 



risk ot harm to their neiRbbour.; and sucb, to a limited 
int tthc duty of occupier, of liKcd ,-roperty to ha™ 
it in reasonably safe condition and repair, bo far as that 
U erCassured by the due care on the part not only of 
themselves and their servants, but of all concerned. 

it dTgreos of responsibility may be thus arranged, 
beginning with the mildest; 

(i) E„r.QI>r df and spocilitaH.V authorized agents 

(this holds absa-ys). 
(ii) For servants or agents generally (limited, to 
course of employment). 

(y) The distinction will bo «"- 
pUinod below. 

(=) Hoo «!«""» "■ " '■''""' 
(1868) Ex. Ch. L. R. i t!- "■ 
138, 38 L. J. Q. B. 21 

Ch.SB. &S. 970,34L. J. «B. 
266; Ilnyd«ker v. Ule !)«"•" 

Com,cil [1896J 1 Q. »■ 335, 65 
1. .1. Q. U- 38'' '^'- *^' '"' 
r»i iij >■ ll'imbleilou Vrbaii 
f„„'„r,7|189912<!. B. 72,««Ki- 

t 392; 68 L. J. «• B. 10*. 
1016, botli in t". A. 




Ear botk scivmitsuind independent contractors i/tU4i.X*Jf 
(diidosnstasnlVrormiV, &o,). / */l/&i,. 

• iki'"ll 

(iv) For ovorytlii.^ Jut ris major (exceptional: 
801.1,. ™«« of special risk, and, anomalously, 
certain public occupations). 

.\£art fron, the caso» of ..xcoptionnl duty where the Mod.... 
responsibility is in the nature of in«uranco or warranty a 1^""'^' 
liaUJnaybo.lialJii for auotlicrs wrong- uS^ 

(1) 48 having authorized or ratified that particular o*""' 

wrpjlf;: [l j 

(2) As staudiuK to tlie othc-r person in a relation 

making him answerable for wrongs eonimitted 

by that person in virtue of their relation, though 

uetscceilically authorizoil . 

The former h,.ad presents little or no dillieulty. The 

latter includes considerable dilliculties of principle and 

18 often complicated with troublosome questions of f^t. 

It scarce needs .,uth,,nty to show that a man is liable Command 
for wTongful acts which have been done according to his "!'?'"• 
express command or request, or which, having been done 
on his account and for his beiiclit, he has adopted as his 
own. •' X tr,.si)asser may be not only he who does the 
act, but who comnmnds or proeures it to be done 
who aids or assists in it ... or who assents after- 
wards "(6). This is net the less so hecaus;. the person 
employed to do an ur.lawful act may be employed as an 
"independent contractor," so that, supposing it lawful, 
the employer would not be liable for his negligence about 
doing it. A gas company emjiloyed a firm of contractors 


(«) De Orey C. J. in Btirkrr 
Bigelow L. C. 235. 

!*»»" (1773) -i W. Bl. 866, 



to break open a public street, having therefor no lawful 
authority or excuse : the thing contracted . to be done 
being in itself a, public nuisance, the gas company was 
held liable for injury caused to a foot passenger by falling 
over some of the eai h and stones excavated nnd heaped 
up by the contractors (c) . A point of importance to be 
noted in this connexion is that only such acta bind a prin- 
<jipal. by. subsequent ratification as were done at the time 
on the principal's behalf. What is done by the immediate 
actor on his own account cannot be effectually adopted by 
another ; neither can an act done in tlie name and on 
behalf of Peter be ratified cither for gain or for loss by 
John. "Ratum quis habere non potest, quod ipsius 
nomine non est gestum" (d). 

The more general rule governing the other and more 
difficult branch of the subject was expressed by Willes J . 
in a judgment which may now be regarded as a classical 
authority. "The master is answerable for every^uch 
wrong o jf the servant or agent as is committed in the course 
ol the service and for the master's benefit, .thougl.' no 
exprBaa command or. privity of the master be proved " (e). 

Bcawn No reason for the rule, at any rate no satisfying one, is 

master's commonly given in our books. Its importance belongs 

liabiliijr. jj^g^jj^g,. j^ j^e modern law, and it does not seem to be 

illustrated by any early authority(/). Blackstone (i. 117) 





(c) ^» V. Sheffield Oai Coll- 
tumert Co. (1853) 2 E. i B. 767, 
23 L. J. Q. B. 42, 95 B. R. 792. 

(d) WUk» v. Tumman (1813) 
6 Man. t O. 236, 64 R. R. 770; 
and Serjeant Manning's note, 6 
Man. &G. 239; 64 R. R. 773. 

(e) Barmck y.-Eng liih Jomi 
stock Bant (1867) Ex.. Ch. L. H. 

2 Ei. 259, 265, 36 L. J. Ex. 147. 
The point of tlie decision is that 
fraud is herein on the same foot- 
ing as other wrongs: of which in 
due course. 

(/) Joseph Brown Q.C. in evi- 
dence before Select Committee on 
Employers' Liability, 1876, p. 38; 
Brett L. J., 1877, p. 114. A 


•""•«n% said, Hesr^ndZ '""^ command." Jt ,-, 

,7 «'-m /.C.V per u, JZ il r '"''• «'"■ /-'■' 
•" """.omed aete. „ot t„ J l'!!" " '""^ "PPlieablc „„,y 
"^-nt or servant "inThrr ' ""'"^'"'™'"'>- tho 

-vants; but if this „.f",*" .^ ^-^^"1 in choosing fit 
^"-go himself ,.^ sl.;^!'; r."' -^ --'- oould^iis. 
-™g ho is sued wa. Choi, hv , """'' ^" -''"^ 
-- « fact generally ^1 1 ""! T"'' '""" «'™. -.d 
«''.oh:s certainly „,/,,;;;;;o"''"eted and competent: 
A better aceounf . • ' 

;f Ma^ehusotU. ■■TUs'r "'T "'"'"f ^^'^ ^haw. 
'""nded «, the g„,, p^J ™'^' '"= -d. "is obviously 
P!"" "> the mana^e»e„t ofl; *''' '''"^' «>at every 
H-lf or ly hUaZlJ o"" -ff-rs. ^-hether b^ 
"'«'° as not to injuraneth '""'■ *'"^' «<> ™nduc^ 

""- ae ;east ne„i,„„ec7;';;;7Po™iWit, to' 
«..» ... J- u. uut no reader is 

Iforceiter n ■, ■""«"» mid 

'•«'. well J' 'r? "'« ■■"'- 

positive. C'«t „ '^ '" '"' 
Wlit« et do ,. p. '» fi«I.on,a. 

'"""■iiMiffleulMo XV. > 
i«.lioo'^ '"'""''''■ ■>' n.,„„, 



to be oon- 


likely to suppose that, ii« n Rencral rulo, either the 
servant or the master can be liable where there is no 
default at all. And the true principle is otherwise clearly 
enounced. I am onswcrable for the wrongs of my servant 
or agent, not because he is euthorized by me or personally 
represents me, but be<auBe he is about my affairs, and I 
am bound to see that my affairs are conducted with duo 
regard to the safety of others. 

Some time later the rule was put by Lord Cranworth 
in a not dissimilar form; the master "is considered as 
bound to guarantee third pei-sons against all hurt arising 
from the carelessness of himself or of those acting under 
his ordei-s in the course of his business" (A). 

The statement of Will.* J. that the master ■has put 
the agent in his pheo to do that class of acts" is also to 
bo noted and reniombend as a guide in many of the 
questions that arise. .V just view seems to be taken, 
though artificially and obscurely expressed, in one of the 
earliest reported cases on this branc'- of the law: "It 
shall be intended that the servant had authority from his 
master, it being for his master's benefit " (J). 

The rule, then (on whatever reason founded), bein^ 
that a master is liable for the acts, neglects, and defouils 
of his servants in the course of the service, wo have to 
dofino further — 

1 . Wb" is a servant . 

2. 'WiaUste are deemed to be in the course of service. 

3. How the rule is affected when the person, iojuied is 

himself aservant of the same master. 

(*) Barton't Jlill Coal Co. v. 
Bcid (1858) 3 Macq. 266, 283, 
111 K. B. 896, 902. 

(i) TttberviUe v. Stamps (end 
of 17th centory) 1 Id. Kaym. 

f- -»>e pu,p^,^ ^^ ; --: «"d even to fa, h,, J^ ^J " 
'«""■> of „,„„,^ „;„, " •*'"» I"" servant Tl,? 

'.-«' of hi. „,^,,^ a, ,0 their"" •"'''^■™' '" 'i^' '•" 
"ort ho ,8 not under th„ ,, "'"*' "eoution of fh! 

,^\:,''- "e doe. r: ;■;:;'': ™ of th.. ;:: 

=^"^^ or his n,eu i„ f,,, 7 '"""^''"S of them by the 
-•"'-'. for e.«mp,e, i ' I [f "^ *''-very. j/ J 

"-; right to say to th e'o':;" '■ -" ^'■<' build 
'. but r shall do it after :n.^' J ''''' "8^- to do 
">; "all at thi„ end „„,,,'"" ^l^'"'"'.- ^ shall begin 
-'"'■on of ™„,,er SLZt, ""''''^ ' ">"- t 

'■"■l-'over is not l.ble - (^ '• f"" ""' «-". -d tt 
^^ '"«=.-taini„,, „.ho i. 

V) I'er Itrnmwell L ; , 
p.— T. 

f»0 ilram,.,,!! L. J p„ , 



tion of 

„„ do^r YOU mart look to tb» 
liable for the act of a """B"/" '' ^,„„ i„ the «conding 
Long-doer him«lf or to the Ji-^^P^^'^, „,„ ,he work. 
U„e who « the o-ploy- r" ^^ ^^^^ ,,„ ,„pU.yer of 
You cannot go ^-*;' ""^irlo control, the work « 
,„at person UaWe (n). ^^. ,,„„ter employer who 

Lnswcrable for the ^"k'n "; '"> ThU distinction « 

\doe, not control .t « »"' - ^ ^'^l^ ,i„„„uie, that may 
thoroughly settled - -/j.^J^.^i,, „( ,,eertaining the 
„,i«, in apply">P 't "- i„„ ,hether a man ha. 

tact* (0). It may be a mce q „ ._^_j „j,„t eoB- 

U,t out the whole oi^^^^l^^^ ot control a. to leave 
M» answerable for wh 

ii.t any P«-t,be d- -^ „ „,»,,. ^t - 

t^. renders t^mself answer *u.._^^^ ^^^ ^^^^^^ 

UillUJ*!- He makes h'ms<>lt ^^^^^^^^^^ ^,,„ 

SThe hirer of a 0-'^;;^' :,,/„ u not, generally 
i, not the hirer's servant but the _^^.^^^,^ ^^^j,. 

,;:r3). "tt if hewers':: b; words or conduct at 

(11*70) I'- «• ** '-' 

r T O P. 26. , 

'^'^ one comparatively »a, 

lommcntea "" . y ly, S. 

(„., Jie,rfi<"- '- » - 2 L. J. 

(Sap. Court, Ma... 1855) 3 I 5 


,Hhlawlu*thyry ,^,. 

plnlt'eX, ...«"■'«, 

fl875)lQ.B.Wv. 36.■«I'■.'■ 
„, ,ho Lime »•»" «^="; ^J t 
Courtofdueen'. Bench in r»yl.. 

, «,„„*.'?* (18") ,V ,^. " 
n B. 487, 43 L. J. «• »■ «»■ 
*■(,) Kvea i! the driver wa. .»- 
lected by Mm..l. :«"«■-";■ 



tho tim. ..notion., a .jw^flc lot of ra.Ii or careka driving, A ojL 

ho may well bo liahln r,^ Rather .light evidonoe of per- £j^..liJtJt^ 

ho may well bo liable (r^ ,„„,„r ,„gnt ev.donoe of per- 
«)nal interferenco hw boon allowod a. .ufficient in thi. 
oliw. of cnwK («) 

It .. doubtful whether a .ervunt ha. any authority im- Meg., 
pliid by law to delogato his duty to a stranger, even in f,""' 
ca»u of sudden necessity, so a. to make his employer liable ° ^' 
for that strnnger'. aet, and defaults. At all event- he ha. 
not .uch authority whore it i. possible to .oramunioate 
'with the employer (<). 

One material result of this principle is that a person who T™po. 
18 habitually the servant of A, may become, for a certain "^f"- 
time and for the purpose of certain work, the servant of i^"^"- 
B.; and this although the hand to pay him is .till A.'.. 
The owner of a ve«wl employ, a stevedore to unload the 

AS K. fi. 717. So where a vessel 
is hired with ita crew: Dalyell 
V. Tgrtr (1858) E. U. 4 E. 
899, 28 L. .1. Q. B. 62, 113 
II. R. 939. So where a con- 
tractor finds horses and drivers 
to draw waterlng-carta for a 
municipal corporation, the driver 
of such a cart is not the servant 
uf the corporation: Jonet v. Vor- 
poration of livrrpool (1885) 14 
«. B. D. 890, 54 L. J. Q. B. 346; 
ip. r.ilile v. Ilackett (188(i) 116 
C. S. at pp. 371-3, 377. Other- 
wije wliere the owner of a car- 
rittffC and horses iippt them at a 
liiorjr stable, and only the roach- 
man was found by the stablc- 
lirepor: Jonr»,. Sculliird [1898] 
2 (J. B. 565, 67 L. J. Q. B. 896. 

<r) .VfJiaupMin u £K#or 

(1842) 4 Man. tc G. 48, 61 B. R. 

455. Hirers of motor-cars should 
bear this in mind. 

C«) /4. ; Bttrgett v. Graj/ (1846) 
1 C. B. 678, 14 L. J. O. P. 184, 
68 B, R. 769. 11 is diffloult in 
either case to see proof of more 
than adoption or acquiescence. 
Cp. Jone* v. Corporation of 
Liverpool (1886) H Q. B. D. at 
pp. 893-4, 54 L. J. ((. B. 346. 

(0 GuiiUiutn \. 'Sw'ti ri896] 
2 Q. B. 84, 64 L. J. Q. B. 474, 
t-". A. A fortiori the master is 
not liable where control of his 
property is assumed, without 
cither authority or necessity, by 
a servant employed by him for 
other purposes: Beard v. London 
(lenernt Omnibiu Co. [19001 2 
'I B. .530. 69 L. J. Q. B. 895, 
('. A. (conductor driving omnibus 
lietween regular journeyg). 


cargo. The utevcdoro omployi hi» own lubourem; am' ii? 
other 111,11. somo of the ship'n crow work for him .>.y 
arrangement with the mast >■. Iioing like the othcm paid 
by the Btevodoro and under his orders. In the work of 
unloading these men are the siTvants of the stevedore, not 
of the owner («). There is no "common employment" 
between the stevedore's men and the sei.iieii on board (t). 
,But where the habitual employer lets himself out, so to 
•peak, along with his servant, and retiiins the iiiime<liato 
eontrol of the work, he continues to he the responsible 
^irineipal (y). 

Owners of a eolliery, after partly sinking a shaft, agree 
with a contractor to finish the work for them, on the 
terms, among others, thnt engine power and onginccra 
(to work the engine are to be provided by the owners. 
The engine thnt bus been used in excavating the shaft 
is handed over accordingly to the contractor; the same 
jengineer remains in charge of it, and is still paid by 
'the owner., ImJ is under the orders of the contractor. 
nnrinjr the coaUnuauco of the work n.i "u c tcims the 
engineer is the scnant not of the colliery owners but of 
the contractor (:) . 

upiTuIioii miller the dirpption of 
the operating surgeon are nut for 
that purpose servants of the 
governinif l)ody of the liospital; 
flilli/er V. St. Biirtfi»'.omew'» 
/lotpilal 11909) 2 K. II. 820, 
78 L. J. K. 1). 958, C. .\. 

(y) lV«ldi>ck V. WM/idd [1901] 
2 K. D. .M6, 70 L. J. K. B. 925, 
C. A., ditferinff with the Court 
below on the conatruotion of the 

Collirrii Co. 0877) 2 C. P. Div. 
205, 46 L. J. C. P. 283. See 
also Donoviiti v. Laitir/ [1893] 1 

(u) Muimn V. Cmrir (1870) 
L. R. C. P. 24, 41) L. J. C. P. 
26. In this case the man was 
actually paid by the owner's 
agent and his wa^e-s dcductdf i 
account with the stevedore, which 
of course make* no difference in 
principle. Cp. H'iitl v. Wn'ti/ood 
[1892] 1 Q. B. 783, 01 L. .1. 
(J. B. 391, C. A. 

ix) Caitii-iuu V. yyatroDt (J. 
C. from N. Z.) [1893] A. C. 308, 
62 L. J. P. C. 85; rp. Vnion 
Steamship Co. V. Clnridije [1894] 
A. C. 185, 63 L. J. P. C. 56. So 
hospital nurses assisting at an 

""■rti* AND «K«VA»T. 
•^ut where iroa-tn„^A 


."■•^ Pf.y«yo„| ,b,-,„, " ,;;' "'^■»«"''.V moan a p Jj ^Jk'!!- 

j' " enough that the JZtTu . *'"' "■" <>'"■<'" ('>) 
d'-efcn, if „„„ „^^,, ;» " bound t„ „be, the ^^- 

K- "-o '.".e being, t not f "• '"■"°^'«'«' "-o "J^r 
i«'.;"".'or,..en.ption oftLUn T"' *^' '"> -^'t 

1 n« reiution f 
Q.«.«,»„3, , . ^--^l'— 1« of the <>">«. • 

<}• B. 2S, 

j^- «■ 629, 63 [. 
'»'':'■ 033; L^T"" '^"■ 

•'til ed. eh 9 /b 

'"«»<era„T °"'''' "'"' «' 

and ^^'^vunt for tl 

niv.281. a' • '"""'say. ii. 

C. A. ' °' ^- •'■ «■ ii. 2U 



oourse of 

of specific 


Kin., and one of them is not the servant of another. It 
St tolrwise b. statute, hut an ^-nt on -3.^_ 
the personal liahility of an employer on the P-* --'^ 
GenS or any other head of """P"'-; ''''' °°' 
inferred without pUin words to thatefieot (d) • 

seMoe or employment. Tl». injury m respect of winch a 
7Z becomes subject to this kind of v.cano^s.>brh.y 
„«yheeaU»d in the following ways: 
^ It may be the naturaUfinsequ.uc. of .omothin^ 
being doae by a servant witk^dlBMi- W« '" 
execution-of the master's specific orders^ 
rM It may be due to the servant's wauJ-oiLisare m 
^^ Zing on the work or business in which he .s 
emukjed. This is the commonest case. 

(c) Thc^ant's wrong may consist in escfiflMlLJB.'- 

i^u execution of a lamful authority. 

(d) Or it may even be a ^dlM, such as assaul . 
^ ' provided the act is done on the meter's hcM^ 

lad with the intsfltion of serving his purposes . 

Let us take those heads in order. 

(a^ Here the servant is the master's agent in a proper 
«S and the master . liable for that which he he. .xu.y 
Zt by the fiction of a legal max.m, commanded to be 
done He is aUo liable for the natural consequences of 
borders, even though he wished to avoul them, and 
dL^d hi servant to avoid them. Thus, .n G^«r. - 
S(e), a right of way was disputed botw«..n adjacent 

(d) BaiairJit^ v. Poitmanler- 
g^Ll [1906] 1 K. B. 178 76 
L. J. K. B. 366, C. A. And »ee 
l-rof. Harriwn Moore, " l-!«- 

biUty for A»U of PubUo 
Ser.u»U," L. Q. B. X''J- «■ 

, I u B. t C. 691, 33 E. K. 
26 (1829). 


ocaipiLTs, and the one who reaisted the claim ordered a 
, labourer to lay do ■" rubbish to obstruct the way, Imt w 
as not to ton. 'i ih« other s 'vall. The labourer ex«.uted 
the orders as nearly as ho . ^uld, and laid the rubbish 
801.10 disUuicu /)•(„„ ihc wall, jut it soon • shingled do™ ■ 
and ran ugains. lU ; JK md in fact could not by any 
ordinary cure have been prevented from doing so. Foi- 
this the employer was held to answer as for a trespaes 
whicli he had authorized. This is a matter of general 
principle, not of any special kind or liability, Xo man can 
authorize a thing and at the same time affect to disavow 
its natural consq<]uences, no more than ho can disclaim 
responsibility for the natural consequences of what lie do<.s 

(b) Then comes the case of the servant's negligcntc in XckU- 
the performance of his duty, or rather while ho is about Sit°of 
his master's business. What constitutes negligence docs '"Mter's 
not just now concern us; but it must be established that 
jthe servant is a wrong-door, and liable to the pUintifl', 
Ibefore any question of the muster's liability can bo enter- 
tained. Assuming this to be made out, the question amy 
occur whether the servant was in truth on his master's 
business at the time, or engaged on some pursuit of his 
own. In the hitter case the master is not liable. ' If the 
servant, instead of doing that which he is employed to do, 
does something which he is not employed to do at all, the 
master camiut be said to do it by his servant, and therefore 
is not responsible for the negligence of his servant in 
doing it "(/). For example: "If a servant driving a 
carriage, in order to ell'ect some purpose of his own, 
wantonh strike the horses of another person, . . . the 

(/) Maule, J., Milciill v. (,V».«i£i-«n- (1853, 13 C. B, 237 22 L J 
C. P. 100, 03 R, R, 517. ' ' 

■* 1* 



msflter 8 

muBtcr will not bo liublc But if, in ordor to pcM-foriii his 
muster's oi'dei's, he strikes but iiijudieiously, and in order 
to extricate himself from n difficult}', that will be negli- 
gent and carekss conduct, for which the master will be 
liable, being an act done in pursuance of the servant's 
employment" {g). 

Depurturc I \YtoJier the serxunt is lealb:- l»nt oijjiis., master's 
tiOTfrom /"lliirs or not is a question of fact, but a question which 
miiy be troublesome. Distinctions are suggested by some 
' of tho reported eases which iire almost too fine to Ix- 
^'TTW^in acfTtoblc. The principle, however, is intelligible and 
rnlional. Not every deviation of tlie servant from tho 
strict execution of duty, nor every disregard of particulai' 
instructions, will be such an interruption of the course 
of employment as to determine or suspend tlie master s 
responsibility. But where there is not merely deviation, 
but a total departure from the course of tlie master's 
business, so that tin- scrv.'mt may be said to he " on a frolic 
of his own " (A), the muster is no longer answerable for the 
servant's conduct. A few modern cases on either bide of 
the line will illustrutu this distinction. Its importance 
is not confined to the law of torts, but extends to thosn 
oases whei* a man may be liable under a contract for the 
negligence of his servants {i} . 

{ij) Violt V. Aliiiyn (1821) 4 1). 
Ji .Md. 590, 2.S n. R. 407. 

(A) I'arltP IJ.. Jorl V. Marimu 
(1834) (i C. k v. 603, 40 li. ]{. 
814; a ni^i priua t'a,4c, but ufton 
cited \Yith approval; sec Bunii v. 
Poiiltmn (1873) L. K. 8 C. P. at 
p. 567, 42 L. J. (". P. 302. 

(i) Thus ttic bailcf! of a oliattel 
is answerable for damajifC done to 
it by tlie negligence of Ilia KCr- 

vants acting in the course of their 
employment, but not if they 
meddle with it outride their em- 
ployment: Sftiiderson v. Colliim 
[1004] 1 K. B. ()28, 73 L. J. 
K. B. 358, C. .v.: or connive at 
theft, whi-re the bailee is not 
generally answerable for loss by 
stealing: Chrskirr v. Ilailpy 
I1905J 1 K. 1). 237, 71 L. .J. 
K. D. 176, C. A. 



I HI ™ 

"' '1 natulan v. Pear„f„ (i^\ 
h « oontruetor, having thl ai^r"'"'"' "l""™ ""P'"™' ""'"'-' 
^"■- dinner i„ hi, davW J r" , "" '"""'" ''^ " '"""' 

;"'P%o<,. happ..«, ,„ Xl: ^^ ••;;'- «••- ho waa 
, "iMructions, l,o wont hom,. , a ^' '^"'"''"■y to his ^ 

"'"' ^""'"80 to tho plaintiff, railitV ': ™" "'''' '""' 
"..rranted in finding that tl,„ ^ ■""'•■' """ '"^'d 

""• »urse of his e,fp ovl ; "T,"" '™^ "'™"g''°ut in 
"-ting within th, "onIT " '"! """^"^"'-'^ «"'™''t 

^"-'— .ndri:::rj^--'-"™„- 

Knrielhiwt v. Farrant if f ' 

e^opTiSTIiS; tEattE-J^;^:;";""^J tho Ia«t ca.e «,., 
^ an orrand-bov in if tl, "'' " ''""-l ''™« ^r"', 

-torfe:. with tho d i",l tt^i, 1 'r*' '''^'"■'''™ 'o ^'^ 
»" round to save „ 1 lo iin! • '""^'' '"' """''1 ^'t the 
into a oardago in lu/ulki '" "''"' "™-^ ■ "'^ ™n 
/"though tho'b«^ :t;':„;"^'"f ■ ^* «- iK.ld that, 
,J''o,ymont, th.^X^^ZZ"' '" '''" »-- "^ '"» om- 
—ov was in tho"tri';r ;- '"""'"^ ""' "-^ "' his 
"""'0 the n.a8tc.r liable ''"^''■'- ^ "'"Plovm,,,^ ^^j 

--. e^pio,,, „.,,„ ,;7-J « A clerk of the -'--■ 
'■^ -as no.r ho,„o, to tu n off ,""'"""'' '""'■ "''on 

1 * 



IT. Jones. 


carman was driving in thi« direction lie ran over thu plaiu- 
tiff . The Court held that if the carman " had boon merely 
going a roundabout way homo, the master would have be<..n 
liable; but ho had started on an entirely ne,» journey on 
his own or hia fellow-servant's account, and could not m 
any way be said to be carrying out his master's employ- 
ment " (o; More lately it has bc:.n held that if the ser- 
vant Iwgins using his muster's property for purpose* of his 
own, the fact that by way of afterthought he does some- 
thing for his master's purposes also is not necessarily such 
a ■■ re-entering upon his ordinary duties " as to make the 
master answerable for him. A journey undertaken on the 
servant's own account " cannot by the mere fact of tho 
man making a pretence of duty by stopping on his way be 
converted into a journey made in the course of his em- 
ployment" (p). 

The following is a curious example. A carpenter was 
employed by A. with B.'s permission to work for him in a 
shed belonging to B. This carpenter set fire to the shed 
in lighting bis pipe with a shaving. His act, though 
Ineglit-ent, having nothing to do with the purpose of his 
lemployment, A. was not liable to B. (9). It does not seem 
difiicult to pronounce that Ughting a pipe is not m the 
oourse of a carpenter's employment; but the case was cue 
of difficulty as being complicated by the argument that 
1 having obtained a gratuitous loan of the shed for his 

fn) LuBh ,T.. I.. R. 1 Q- B. at 
p. 480. It «a» " an entirely now 
and independent journey, which 
had nothing at all to do with his 
employment: " Cockburn 0. J. 
" Every step he drove w!i^ away 
from his duty; " Mellor J., ibid. 
But it could have made nc diflor- 
ence it the accident had happened 

as he was coming bacit. t^i'c the 
next case. 

(p) JtajmeJUi^MUcfieU (1877) 
2 C. P. D. 357. 

(5) inUiami V. Jonn (1863) 
E%. Ch. 3H. SiC. 236, 602. 33 
L. J. Ex. 297; disi. Mellor and 
Blackburn JJ. 



A. had acquired the ell -'"^ "> "'•"^ "«" 

Apart from th^ the Z™ "" " "'""'ol "^ ">« «bed. 
t- been Z^^t^" [TZl 1" ""^ '° *" ■^'^ «''-" 
any reported Eon „■ "" "'"' '''^ "•" ^""^^ - 

bo held nrble ' C^;: "'"" """ "'^' '"'"-•"■-'■ -«•>!-. 

"a^ter i.Me iTtr ^oir::' """ " " '" "-'' '"^' -- 

lawful authoritv To IlbH T " ''T"' "''™''''" °' " ^'T"^ 
of a kind wMoh he wa. L W 1 '"'^'"' '°'"-^'^""" 



-t^oned in particular he i. not Xt;:^^;;''- 

i.^ 16, among other things, to see that ^yg"^: 

Wriyht, Emp. L. 

('■) B. S. 
1876, p. 47. 

(») For a recent iUmtration 
«■ ^c„„l,^ ..„i Caieiy Main 

Collierie. V. Yo^kMr, ilin,,,- 
f'"<''otio„ [1906] A. C. 384 75 
r- J. K. I). 9151. 


passi'Dgcrs do not get into wrong trains or carriagi'S 
(but not to rciuovo them from a wrong carriagu; asks 
a passenger who lias just taken his siat wliero ho is 
going. The passenger auswiTS, " To MacolestielJ." The 
Iporter, thinking the passenger is in the wrong train, pulls 
Slim out; but the train was in fact going to Macolesliold, 
and the passenger was right. On these facts a jury may 
well find that the porter was acting witliin his general 
authority so aa to make the conipauy liable 'I . Here are 
Iwth error and excess in the 8<-rvanfs action; error in 
supposing facte to exist which make it proper to use his 
autlioritv (namely, that the passenger has got into the 
wrong t'rain;; excess in the manner of executing his 
authority, even liad the facts be<-n as he supposed. But 
they do not exclude tlic master's liability. 

" A person who puts another in his place t;) do a class of 
'acta in his absence necessarily leaves hiin to determine, 
according to the circumstances that arise, when an act of 
that class is to be done, and trusts him for the manner in 
which it is done; and consequently he is held answerable 
for the wrong of the person so intrusted either in the 
' manner of doing such an act, or in doing such an act 
under circumstances in which it ought not to have been 
done; provided that what was done was done, not from 
any caprice of the servant, but in the course of the 
employment" (m;. 

Snjnumr v. Greenwood (ar) is another illustrative cose of 
this class. The guard of an omnibus removed a passenger 
whom he thought it proper to remove as being drunken 

(t) Bayhp V. Mancheitcr, Hhef- 
field, and Liticolnshire R- Co. 
(1872-3) L. B. 7 C. P. 415, 41 
L. J. O. P. 278, in E«. Ch. 8 
C. P. 148, 42 L. J. C. P. 78. 
(») Per Willes J., Sa»i£»i Ai. 

eoUuhi" "■ <■■<'■. ^- "■ ' *'• ^- "' 
p. 420. 

(I) 7 H. & N. 3.55, 30 L. J. 
Ei. 189, 327, 123 R. R. 563, 568, 
Ex. Cli. (1801). 



and offensive to the other pafw^'ngtTS, and in so doing used 
exccesivo violence. Even if ho were altogether mistaken 
08 to the conduct and condition of the passenger thus 
removed, the owner of the omnibus was answerable. 
" The master, by giving the guard authority to remove 
offensive passengers, nowssarily gave him authority to 
determine whether any passenger had miscondueted 

Another kind of case under tliis hi'ad is whore a servant ArreHti.t' 
takes on himself to arrest a supposed offender on hif* otfeK-K. 
employer's behalf. Here it must be shown, both that the 
'arrest would have been justifietl if the offenee had really 
Jbeen eommittod by the party an-ested. and that to make 
such an arrest was witliin the employment of the servant 
who made it. As to tlie latter point, however, "where 
there is a noocssity to have a jxTson on the spot to act on 
an emergency, and to det<Tmine whctlier certain things 
shall or shall not bo done, tlie fact that there is a person 
on the spot who is acting as if he had express authority is 
prima facie evidence that he had authority " (//) . Railway 
companies have accordingly been held liable for wrongful 
arrests made by their inspiK-tors or other offioers as for 
attempted frauds on the company punishable under 
statutes or authorized by-laws, and the like (2). 

But the master is not answerable if the servant takes on Act 

himself, though in good faith and. meaning to further thi '^^^^l^^J^. 

master's interest, that which the master has no rjirht to do «iithority, 

_ '^ master not 

even if the facta were as the servant thinks them to bo: liable, 
as where a station-master arrested a passenger for refusing 



(tf> Blackburn J., ilcorf v. 
Metnp. R. Co. (1872) 1-. K. 8 
Q. B. 36, SD, 42 L. J. Q. B. 2.1. 

<«J /A., following Gnjfv. (1. .V. 
H. Co. (1861) 3 E. as E. 672, 311 
r,. .1. Q. B. 148, 122 R. R. 889. 


, to pay for the carriage of u horsi , a thing outside the 
company'6 powers (a). Tho muw nilo holds if the par- 
ticular servant's act is plainly hcyond his authority, as 
where the officer in charge of a railway station arrests a 
man on suspicion of stealing the company's goods, an act 
which is not part of the company's general business, nor 
for their apparent l*ne«t (fc). In a case not clear on the 
face of it, as where a bank manager commenc es a prosecu- 
tion, which turns out to be gro.indloss, for n supposed 
theft of the bank's proi>crty a matter not within the 
ordinary routine of banking business, but which might in 
the particular case be within tlie manager's authonty-the 
extent of the servant's authority is a question of fact (c). 
Much must depend on the nature of the matter in which 
the authority is given. Thus an agent intrusted with 
general and ample powers for the management of a farm 
b,« been held to be clearly outside the scope of lus 
authority in entering on the adjacent owner's land on the 
other side of a boundary ditch in order to cut underwood 
wliich was choking the ditch and hindering the drainage 
from the farm. If he had done something on his em- 
ployer's own land which was an actionable injury to 
adjacent land, the employer might have been liable. But 
it was thought unwarrantable to say "that an agent 
intrusted with authority to be exercised over a particular 
piece of land has authority to commit a trespass on other 
land" (d). More generally, an authority cannot be im- 
plied for acts not necessary to protect the employers 

(a) Pnu""" 1, L. i IL »•• ^■ 
Co. (1867) L. R. 2 Q. B. S34. 
30 L. J. Q. B. J94. 

fS) Edwardi v. i. i H- "'■ *• 
Co. (1870) L. B. 5 C. P. 446, 39 
L i. O. P. i41; op. Mtmi v. t- 
* ,S. (T. K. Co. (1870) L. B. 6 

a. B. 65, 40 L. J. a. B. S5. 

(o) Bank of Kttc South Wain 
V. Owilon (1879) (J. C.) 4 App. 
Ca. 270, 48 L. J. P. C. 25. 

(i) Bolingbrohe v. Swindon 
Loea! Bo^rd (1874) L. K. » C. P. 
576, 43 L. J. C. P. 676. 



property, suoh m arreatinjt a customer for ii siipposed 
nttoinpt to pass bad money (e) . 

(d) Lastly, a m jter may be liable even for wilful and ^i""' 
deliberate wrongs committed by the aervant, provided tbcy A^'foT"' 
he done on the master's account and for his purpOHes, and p„"^. 
(it would seem) are of a kind that might in some circum- 
stances be within the lawful course of employment: and 
tills, no less than in other cases, although the servant's 
eonduct is of a kind actually forbidden by the master. 
Sometimes it has been said that a master is not liable for 
the " wilful and malicious " « Tons,' of his servant. If 
"malicious" means "committed exclusively for the 
servant's private ends," or "malice" means "private 
spite " (/), this is a correct statement : otherwise it is 
contrary to modern anthtrity. The only material ques- 
tion of intention is whether the servant intended to aot in 
the master's interest {g) . 

In Limpm v. London General Omnibus Company (A), 
the defendant company's driver had obstructed the plain- 
tiff's omnibus by pulling across the road in front of it, 
and caused it to upset. He had printed instructions not 
to race with oi obstruct other omnibuses. Martin B. 
/ directed the jury, in effect, that if the driver acted in the 

(«) Abrahamt v. Deiikin [ 1891 j 
1 Q. B. S16, 60 L. J. Q. B. 238, 
C\ .v.; Hanton v. IValler [1901] 
Q. B. 390, 70 L J. Q. B. 231. 

(/) Sec per Blackburn J., 1 H. 
J: C. 543. 

(ff) That it does not matter 
whether benefit actually reaults 
to the master, see (if fresh au- 
thority is needed) per Farwell 
L. J. in Llo>/d v. Grace Smith ^ 
Co. ri«Il| 2 K. B. at p. 807. 

(*) 1 H. S: C. 526, 32 L. J. 
Ki. 34 (1862). This and S«y. 
mour V. Greenviood (p. 92, 
above) overrule anything to the 
contrary in U'Manut v. Crieketf. 
1 East, 106, 5 B. B. 518. Hen- 
it mi^ht have been necessary or 
proper to pull across the road <m 
some emergency, say to avoid il 
collision or dear the road for a 



[way of his employment and in the 8Uppo«ec] intercHt of 
ihiB employers as against a rival in tlieir business, the 
emplc/era were answerable for his eoiiduct, hut they were 
not answerable if he acted only for some purpose of hiH 
own: and this was approved by the Ext^hequer Chambfr(/ . 
The driver *' was employed not only to drive the omnibus, 
but also to get as much money as he could for his mast('i\ 
and to do it in rivalry with other omnibuses on the roud . 
The "vct of driving? as ho did is not inconsistpnt with his 
employment, when explained by his desire to pot hofort' 
the other omnibus.' As to the company's instruotiont-, 
" the law is not so futile as to allow a master, by giving'- 
secret instructions to hi» servant, to diuuhai'go hims<-lr 
from liability ■" (A*). The fact that tUii-wxongful act is 
oximiually punishable, if it be so, makes no diiference to 
the master's liability (I). 

Fraud ( f 
agent or 



Thtii an employer is liable for frauds of hiw sorvtuit 
committed without authority, but in the course of the 
service and in apparent furthoranco of the employer's pur- 
pc«es, was establiuhod with more diiliculty; for it seemed 
harsh to impute deceit to a man personally innocent of it. 
or (as in the decisive cases) to a corporation, which, not 
being a natural person, is incapable of personal wrong- 
doing (m). But when it was fully realized that in ail 

(») WilUums, Crompton, Willos, 
Bylea, Bluckburn JJ., (IUm. 
Wightman J. 

(A) Willea J.. 1 il. A; C. at 
p. 539. 

(I) D'jfr V. Miirtday [1896] 1 
Q. B. 742, 64 L. J. Q. B. 448, 
C. A. 

(m) This particular difficulty is 
fallacioua. It is in truth neither 
more nor leas easy to think of a 

corporation as deceiving (or being 
deceived) than as having a oon- 
»ienting mind. In no case can a 
corporation be invested with 
either rights or duties except 
through natural persons who are 
its agents. Cp. British Mutuai 
Banking Co. v. Charnuocd Forest 
It. Co. (1887) 18 Q. B. Div. 714, 
56 L. J. Q. B. 449. As to the 
nereasity once supposed to exist 



these caws the master', linhii;., • • 

"f 'ho la«. .ithout re, Lit or '" 'TT' '' ">" P"''"^ 

- that his express eo n"a„d „r • '''''"'" "" '"" P"'. 

'ho same footing as any other . '' "'"'"''' '"' "" 

;« handle, in o!r lead^ ; ^ 'J^. »^: f 'ho Matter 
Exehequer Chamber .lelitereTbv Vili \ """'' "' ""' 
EpalM Joint Stock Bank '^^ '" •^"«* »• 

■■Meter's bu.„e.. „d f„H.i mT '". ""^ ™""« "^ •■- . 

-rtain appeara^iis '' ^ ; :„^' "- T'''''""''"^ 
'ho House of Lords also r ' Wh uIV ''"''™™' "^ 
contrary ,vas either e.tra- udi M ™ "'''' '" ""> 

-'-*c*„rf,oftl,eH uJ „; tb" '"""" '"■■'""' ""> 
'0 'ho particular ease .Z^' 21': T'''' "^ ''"'"^^ 
-pan. not haWn. .ased toTe^: irbr:™ 

for a Mrvant of « corporation 
.t"? '", "•""•'"' """« -'" 
["■0834) , A. iE. ,,e, 3 
(») Even ,f the ,„„j i„^., 

n J'"""' Cc. (1884) 13 Q. B 
"■ 103 53 L. J. Q. B. 353:*,,^; 
:"„ »^e,hor in ^.t ,„„ .^; "^^ 
WM of an authorised class at all- 

*.'.^ rim] .I.e. 439, 75 L. J. 
(») (1867) L. E. 2 Ei. at 
P.— r. 

p. 265. 

(P) .V»c*,y V. Commercial 

Jl, J?«i™ V. Franei, (1877) 3 

APP.C..,„6,47L.J.;.C 8 

O '7'' ?"' I- B- 1 So. I 

"•IM, dicta at pp. ,58,166,167. 

(O Ilo„ld.u„,h V. cvy „. 

««,„,„ i,,„i. (j8j„j 5 ^ ' 


oh.rgo the company with the fraud of it. dire. tor. or other 
»MnU in inducing him to join it (») . 
dvcr.oly a fal« and fraudulent statement of a 
«,"a t made for end. of hi, ow,,, though .n an^or to a 
. „f ,. kind ho wa. authorized to answer on hii 

action for deceit (() • 
^ Ana.ociation.hichi»notin.orpora^.huti.a^^ 

U.M1W An association vvnicu .- "^ '-"''," "-;^., ;, ^^Mo for 
td> -'P-'« ''f " t Tr.tllTnl «: oof their em- 
-^- the wrong, 'lo-.^yjl^.rrlirntccd in a ropresenta- 


(,) n, Lord Selborne at p. 326, 
LotdlI.therl.yatp. 331;l^r4 
Blackbarn'a langnaKc at p. 33» ■• 
more cautiou., perhap. for the 
,ery reason that ho »a. a party 
U, the decUion of B«r»ick v. 

S«,li.h Joi"' •«'"*, .^""'■ 
Shortly, the .hareholder i. m tl"« 
dilemma: while hoi, a member of 

the eompany, h. '' '>"°'"f j. ^^ 
the alleged deceit, If at all, Mlely 

in that he 1. liable a> a .hare- 
holder to eontributo to the eom- 

p.„,., debt.: IhU Uabil.ty bcms 
J, tie e,.ence of a. hareholder. 
position, elaiming eompcnsa >on 
irom the eompany for it mvol«e. 
him in a ne» liability to centr.- 
bnle to that it.ell, 
which i. an absurd circmty. But 
il hU liability a. a .hareholder 

has ceased, ho i. no longer damni- 
fied Therefore re.titntion only 
,hy reicis.ion of hi. eontract), 
not compen^tion, is the Aare- 
holder'. remedy a. against the 
eompany: though the fraudulent 
agent remain, personally liable 

(<) ilrifil* .Wi<(""' Uaiihng Co. 
V Chmoivomi Forelt K. Co. 
11887) 18 a. B. Div. 714, 66 
L. J. Q. B. 449. 

(11) Talf >■«'« li'J- "• ^"i"'!"'- 
,„„Ud Soc. of ttatlwav l^en-^nt. 
[1901] A. C. 426, 70 L. J- 
K 13 905; GiblnH v. .Valiono' 
Utour.r,- Vmo« [1903] 2 K. B. 
COO, 72 L. J. K. B. 907. 

(jr) " An action against a trnae 
union, »hether of workmen or 
masters, or against any member. 
or oficials thereof on behalf ol 


*i'hin a toxt-»rito,', province to comn.cit on ti.e policy 
«l II.C .t»tuto iy) or on the reason, unconncctoj ,ith tho 
.ccnco of law which led to it» enaclmont without «.rion. 
opposition in citl.or House ofl'arliamont. 

The leading cise of Men,;, D,H-, Trustees v. (libUt-) 
«.a,v uko bo referred to in this connexion, a., illustrating 
tl.o general principle, according to which liabilities are 
imposed on corporations and public bodies. 

There is abundant authority- in partnership hiw to show u.^,m^, 
t u a rni is answerable for fraudulent misappropriation tB)" 
of funds, and the like, committed bv one of tiie p,, ■ P^l-'r. 
.n he course of the firms business and within the scope 
<.f his authority, though no benefit be derived there- 
from by the other partners. But, agreeably to tho prin- 
ciples above stated, the firm is not liable if the transaction 
undertaken by the defaulting partner is outside tho course 
of partnership business. Where, for example, one of a firm 
of solicitors receives money to be placed in a specified 
mvestment, the firm must answer for his applieatioVof it, 
but not, as a rule, if he receives it with general instruc- 
tions to invest It for the client at his own discretion 'a) 
Again, the firm is not liable if the facts show that exclu- 
sive credit was given to the actual wrong-doer (6). In all 

Ihcmselvm and all other mcmbora 
of the trade union in respect of 
any lortiou. act alleged to have 
teen eommilted by or on behalf 
of the trade union, shall not be 
entertained by any Court." (6 
Kdw. 7, c. 47, s. 4 (1).) 

Iy) See a severe criticism by 
Karwell L. J. i„ Conway v 
"W. flsos] 2 K. B. 844, 78 
I.. J. K. U. 14; but the House 
of Lords was able to put a more 
benignant constraition on tho .let 

in thii case, sie [1909] \. c. 506, 
78 L. J. K. B. 102S. 

(=) L. R. 1 H. L. 93 (1861-6). 
(") rartnersbip .\et, 18911, ss. 10 
—12. Cp. Bhir V. nnmhf 
(1847) 2 I'h, 354, and Clclh,, v 
Tu„.d,n (I86'3) 24 Ch. U. 731, 
with Harmnn v. Johnion (1853) 
2 E. a I). 61, 22 L. J. Q. B. 297 
95 li. R. 429. 

(*) Hj: imrle Btjn (1842) I 
PI.- 227, 63 R. H. 375. Seo mo™ 
.ilustrations in my " Digcj „, ,|„ 

... 1 T 

those cases tho --^.^XJJr.lrtime a breach ot 00- 
ol them, however, it is at the ^^ ^^^^ that the 

ta^or trust. A""! ^^ "^"f ° the delaulting P«tncr, 

though professing to ac on ^^^^ ^ S"" „j thl 

funds or securities mere y £or ^^^ ^^^.^,„^ „£ tW 

tons given are no aVway;.^- ..presentations good, 




of mMter'9 

ohseurely in* »ted a s^t ^^^.^.^^ --P*^""^;;' 

duced a number o£ -'"f ^ional rule » /*°^";. 
.ather limitations o£ fj J^^^, Aet, 1897, no. en 
while the Workmen s Compe ^^ ^^^^^ ^^^^ hoUy 
larged and superseded by the ^.^^^._^ ^^^ ^ut left 


eceiU from any "'^-f^,^ 1 „£ any other person 
Ber^.ioe, including acts or de ^^ ^^,. ,,„ Aow no mo e 
employed in the same -r.. a.velopmcnt JJe 

first evidence of any ^.^^^^^^ ^^ ^ 

, „t Partnerehip," 9* »*■■ 
'^" ., \ very P«»>'« '"" 

[1897] 1 Cl>- 2"' ° 
128, C. A. 

, N I h.»e diKUMd it in Ap- 


,, '' iil ihc c..e .ctu.". 0- 


decidta in 1837, which proceeds on the theory (if on any 
definite theory) that the master 'cannot lx> bound to take 
more care of the servant than ho may reasonably bo 
expected to do of himself; " that a servant has better 
opportunities than his master of watching and controlling 
the conduct of his fellow-servants; and that a contrary 
doctrine would lead to intolerable inconvenience, and 
encourage servants to bo negligent. According to this 
there would be a sort of presumption that the servant 
suffered to some extent by want of diligence on his own 
part. ' But it is needless to pursue this reasoning; for the 
like result was u few ycais afterwards arrived at by Chief 
Justice Shaw of Massachusetts by another way, and in a 
judgment which is the fountain-head of all the latter 
decisions (e), and has been judicially recognised in 
England as " the most complete exposition of what con- 
stitutes common employment " (/) . The accepted doctrine ReiMon 
is to this effect. Strangers can hold the master liable for Sluto 
the negligence of a servant about his business. But in the "'*"• 
case where the person injured is himself a servant in the 
samo business he is not in the same position as a stranger. 
Ho has of his free wilJ entercd into the business and made 
it his own. He cannot say to the master. You shall so 
conduct your business as not to injure me by want of duo 
care and caution therein. For ho has iigrccd with the 
muster to serve in that business, and his claims on the 
master depend on the contract of service. Why sliould it 
be an implied term of that contract, not being an express 
one, that the master sliall indemnify him against the 

tided was that a niaatfr dot'9 not 
warrant to Ilia EOrvant the suffi- 
ciency and safety of a carriage in 
which he sends him out. 

U) i'laiulL "■ Boston and 

Woiciyali'v Rtcilimr! Cor/wratloit 
(1842) 4 3Ict. 49. 

if) Sir Francis Jcuno in The 
Pe/rcl [1893] I". 320, 323. 



negligonco of a foUow-servant, or any oth.r current risk? 
Itlfathcr to be implied that he eontraeted the n k 
before his eyes, and that the dangers of the, taken 
aU xrund, were eonsidored in fixing the rate of payment^ 
Th"iB. believe, a fair summary o£ the 
L prevailed in the aathoriti». With Us soundn- ^ 
are not here concerned. It was not only adopted bj he 
Hous^ of Lords for England, but f or«=d by them upon the 
TeLant Courts of Scotland to make the junaprudence of 
he two countries uniform (,) . No such app^a 
to exist in the kw of any other country in Europe. The 
IZL,1 a clear Judicial statement of it in its sett^ 
form: "A servant, when he engages to serve a ma^te,^. 
llertakes, as between himself and his master .. run al 
the ordinary risks of the service, including the risk of 
ntugenee upon the part of a fellow-s.-rvant when he is 
lltg in thJdischarge of his duty as servant of him who 
■ is the common master of both (ft). 

■n.^. The phrase "common employment "is frequent in 
^r'^ this cZ of eases. But it is misleading in that it 
Mtbe this Class oi „f ti,„ rule to circumstances where 

.taut a.c suggests a limitation of the rule to 
STo^ the injured servant had in fact some oppor n ty of 
observing and guarding against the conduct of the 
neriigent one; a limitation rejected by the Massachusetts 

(g) See WilKii v. itcrnj (1868) 
L. R. 1 8=. fc D. 326. 

(A) Erie C. J. in Tmiwil v. 
Midland n. Co. (1866) L. K. 1 
C P. »t p. 2»6l .\rclubuld .1. 
„Md very .imilar lan((u!i?o in 
Lo«fU V. Ho«ell (1876) 1 C. 1 . 
D at p. 167, 45 L. J. 0. P. 387. 
It makes no diRercncc that the 

discretion onougli to agree to the 
express terms of a contract of 
service lie cannot repudiate the 
implied ones any more than an 
adult: l'oi<".'7 -■■ ncff««„m 
Uan«f.<ct«Tin, Co. 11907J i 
K. B. 646, 76 L. J. K. B. 933, 
C. .v.; Cribb V. Kyiioch [1907] 2 
K. B. 548, 76 L. J. K. B. 048. 

plaintiff is an 

nfant, for if ho has 


Court in FanveU's case, where an engine-driver was 
injured by the negligence of a switchman (pointsman as 
wo say on English railways) in the same company's 
service, and afterwards constantly rejected by the English 

" When the object to bo accomplished is one and the 
jSame, when the employers are the same, and the several 
jpersons employed derive their authority and their com- 
'pensation from the same source, it would be extremely 
I'dilBcult to distinguish what constitutes one department 
and what a distinct department of duty. It would vary 
with the circumstances of every case. If it were made 
to depend upon the nearness or distance of .ho persons 
from each other, the question would immediately arise, 
how near or how distant must they bo to bo in the 
same or different departments. In a blacksmith's shop, 
persons working in the same building, at different fires, 
may bo quite independent of each other, though only a 
few feet distant. In a ropewalk several may be at work 
on the same piece of cordage, at the same time, at many 
hundred feet distant from each other, and beyond the 
reach of sight or voice, and yet acting together. 

"Besides, it appears to us that the argument rests 
upon an assumed principle of responsibility which does 
not exist. The master, in the case supposed, is not 
exempt from liability because the servant has better 
means of providing for his safety when ho is employed 
in immediate connexion with those from whoso negli- 
gence he might suffer, but because tho implied contract 
of the master does not extend to indemnify the servant 
against the negligence of any one but himself; and ho 
is not liable in tort, as for tho negligence of his servant, 
because the person suffering does not stand towards him 




there ia a 


in tho reUtion of a stranger, but is one whose right, are 
reguUted ty contract, express or impliod (»)• 

So it has been said that "we must not over-refine, 
but look at the common object, and not at the common 
immediate object" (fc). A,l.UeB>« e»g»g«d "»<»» 'he 
same c.n,p.W«tJ«r the purposes o£ the same bus n«s 
;^WBV« difcont in detail those purposes may be, are 
fXv-servanU .in, a common employment w.thm the 
.^;;nng'o£ this rulo : for example, a carpenter doing 
work on the roof of au engine-shed and porters 
an engine on a turntable (J), and a chorus-singer in a 
theatre and the 'soenc-shifters (,n) . " Where there is one 
common general object, in attaining which a servant i 
exposed to risk, he is not entitled to sue the master i he 
is injured by the negligence of another servant whilst 
engaged in furthering the same object (n). 

It makes no difference if the servant by whose negli- 
^T*^ gence another is injured is a foreman, manager, or other 
ST" LpeHor in the same employment, whose orders he 
other was by the terms of his service hound to obey 
jThe foreman or manager is only a servant having greater 
'authority, foremen and workmen, of whu ver rank, and 
however authority and duty may ^l^^^';f^ TZ 
them, are "all links in the same chain (o). bo tlie 
A. C. 77, 78 L. J. K. B. 
452, which however is better 
Bupportei on the broader ground 
that the plaintiH, as a gratuitous 
passenger, had accepted the risk, 
(m) Burr V. Thealm Royal, 
Dr«ru lane [1807] 1 K. B. 544, 
76 L. J. K. B. 459, C. A. 

(„) Thejiger L. J., Charla v. 
Taylor ^liW) 3 C. P. Div. 492, 

((,) Telthnrrt v. England (1866) 
I.. B. 2 Q. B. 33, 36 L. J. Q. B. 



(i) Shaw C. J., farmll v. 
Bo.(o», *». Corporation. 4 Met. 
49. Somo learned French writers 
have adopted the contractual 
view, but with directly opposite 

(i) Pollock C. B., Xorgan v. 
Volt ol Sealh R. Co. (\m) Ex. 
Ch. L. R. 1 Q- D- »»' "'■ " 
L. J. a. B. 23. 

(/) See last note; and cp. 
Coldrick v. PoTlridse, •*<"'«' * 
Co. IIOUU] 1 K. B. 530, [19101 


captain omployod by a shipowner is a fellow-scrvunt of 
the crew, and a sailor injured by the captain's negligence 
has no cause of action against the owner (p) . The master 
is bound, ae bctwwn himself and his servants, to exercise 
duo care in selecting proper and compete],! persons for the 
work (whether as fellow-woriimon in the ordinary sense, 
«r as superintendents or foremen), and to furnish suitable 
means and resources to accomplish the work («), and iio 
is not answerable further (r). 

14; Wilgon V. Merrtj (1868) 

r- K. 1 Sc. i D. 326: Boe per 

Lord Cai-ns at p. 333, and per 

Lord Colonaaj at p. 345; cp. 

Jurr V. JJrtiri/ Lane, note (m) 

above. The l'>enrh word col- 

iaboratflvr, which does not mean 

" fellow-workman " at all, was at 

one lime absurdly introdueed into 

tliese cases, it is believed by Lord 

ilrongham, and occurs as late as 

Wilton V. Merry. See further 

Young V. Hoffmann Manufac- 
turing Co. [1907] 2 K. B. 646, 

70 L. J. K. B. 993, C. A., where 
an obviously hasty nisi prins 

ruling^ compelled the Court of 
Appeal to restate tho elements of 
the whole doctrine. 

(p) Hedleg v. Pinkiiey f Sont' 
«. S. Co. [1892] 1 Q. B. 58, 61 
L. J. (J. B. 179, C. A., uW. in 
H. L. [1894] A. C. 222, 63 L. J. 
Q. B. 419. Even since the Work- 
men's Compensation Act there 
have been actions under the com- 
mon law to which this rule re- 
mains applicable: Cribb v. 
Kynoc/i [1907] 2 K. B. 548, 76 
L. J. K. B. 948. 

(?) According to some deci- 
sions, which seem on principle 
doubtful, he is bound only not to 
furnish means or resources which 


f^ffs >\«««f <«e/ 

are to his own knowledge defec- 
tive: Galiatjher ». Piper (1364) 
16 C. B. X. S. 669, 33 L. J. 
C. P. 329. And more lately it 
has been decided in tho Court of 
Appeal that where a servant jocks 
to hold hid master liablr for 
injury caused by the dungrrous 
condition of a building where he 
is employed, he must allege dia- 
linctly both that tho master knew 
fcf the danger and that he, tho 
fervant, was ignorant of it: 
Griffiths V. London and St. 
Katfwrine Docks Co. (1884) 13 
Q. B. Div. 259 53 L. J. Q. B. 
fi04. But this , T08 not seem to 
fxtcnd beyoniijilje^caseoXappli- 
inceiorig^all^uffieien.t falling 
mt of repair: Williama v. Btr- 
minffkam Battery and Metal Co. 
[1899J 2 Q. B. 338, 68 L. J. 
Q. B. 918, C. A. Cp. Thomas v. 
Quaitcrmaine (1887) 18 Q. B. 
Div. 685, 50 L. J. Q. B, 340. 
At all events the question of 
personal negligence is immate- 
rial, and defence of common em- 
ployment inapplicable, where a 
positive statutory duty prescrib- 
ing conditions of safety haa been 
broken: IltitUr v. Fi/e Coal Co, 
[19121 A. C. 149. 
(r) Lord Cairns, as ibove: to 





ttmotor. Have - -^-/;lalltX:^' 

,„Vcont.aeto« ^<^J^l^:2:2 S tl ..van. di.ectl, 
for thU purpose fellow-servant ^.^^^^^ 

employed by the ^'"^^'^fj^jt^^'.^ under the 
evidence that the -^"J- ^f ^ ^j' ,„„t„„tors. Thi. 
direetion or control o{ the ch.e .^^ ^^^ 

„tiaeial and unjust -"f""!:™'!' Lords (,). A 
«as fortunately stopped by *^ Hj^ "^^ j^u„„.,ervant 
,„,,estion that "^^ ^ol employment has 

W..a.e, The rule of common -f-^^ ttri^^^t 
-.. against a personwH^^^^^^^^^^^^^^ „„^,„,er-s 

n of 


fe;.E;-.%™ -•' -^^^^ 

'directions («)• 

irections ^,l•^ , 

u • o., I, Uhelu without reward 

yol^teer Moreover, a stranger -ho ^^^^^^^ ^^ J^ ;, held to put 

•rri. to a man's — ;^ «t ^ ^ility towards him, in 

footing M himself , as regards the master 8 ua 

■«"°«- .. .....m„„»boat dangerous wort 

omo ellect Lord Wen.M'le^ 

Mmo at P- 227: "AH that tM 
Sr is bound to do Uio pro- 
vide m«>hinory fit and proper «« 

th. work, and to take care ^ 
„ hiJ workmen in a flt ana 
p„^r manner." I"/*""",;, 

oa L J. Ei. 23, »6 B. B. 

f,, it ,a. »id that th« 
an°y doe, not extend to havng 
. .Uient number of -ervan'. 
tor the work: >«l ,"■ The 
d^Uionwa, partly on the ground 
that the plaintia was in faet well 
!::^l,nt«l with the risk and had 
»2er made any oomplaint. IM 

or warning about dangerous w^rk 
^y be delegated to. competent 
^™on: Yo,m,: ca.e, note (o), 

A r 371 65 L.T. 97, overruling 
L. J. Ex. 188, 105 B. B- 822, ~ 


u laying down any r" ,• r \ 
[1893] A. C. 308, 62 L. J- ?■ "• 


"t^ roz*«<J V. 'y«'^'" 

Vnl ri908] 1 K. B. 538, 75 
I,. J. K. B. 353. 


the same position as if he were a servant. Having of his 
free will (though not under a contract of service) exposed 
■himself to the ordinary risks of the work and made 
himself a partaker in them, he is not entitled to bo 
indemnified against them bv the master any more than if 
he were in his regular employment (v). This is really a 
■anch of the doctrine " volenti non fit iniuria," discussed 
below under the title of General Exceptions. 

On the other hand, a master whiLlakss an active part Exception 
in his own work is not only himself liable to a servant m«to""' 
|injurcd by his negligence, but, if be has partners in the J""'*"" 
business, makes them liable also. For ho is the agent of '° '"""°' 
the lirm, but not a servant (x): the par.ners are generally 
answerable for his conduct, yet cannot say he wa* a fellow- 
servant of the injured man. 

Such were the results arrived at by a number of modern Em- 
authorities, which it seems useless to cite in more detail: £,tbmt 
the rulfl. though uot-ak-ogated, being greatly Umitedjji ■^"*' "«»• 
a E pUcptio n by statute. The Employers' Liability Act 
1880 (43 & 44 Viet. c. 42), is on the face of it experi- 
mental. It was temporary, being enacted only for 
seven years and the next session of Parliament, and 
since continued from time to time; it is confined in its 
operation to certain specified causes of injury; and only 
certain kinds of servants are entitled to the benefit of 
It, and then upon restrictive conditions as to notice of 
action, mode of trial, and amount of compensation, which 
are unknown to the common law, and with a special 

(f) Polttr V. Fautkner (1861) 
Ei. Ch. I B. s S. 800, 31 L. J. 
Q. B. 30, approving: Hegg v. 
Wdhni R . Co. (1867) 1 H. 4 

N. 773, 26 L. J. Ei. 174. 

(.x) Alhworth V. Stanwiat 
(1861) 3 E. i E. 701, 30 L. J. 
Q. B. 1.S.3, 122 E. R. 906. 



Ml, f 

period Of limiUtion. The oBeot U that a workman 
(Um^^ Cithin the meaning of the Act i^ put a, agam.t hia 
^fiUS^- i^ 1 ;„ approximately the same pos.tion as an 

/P/yi ^ ou^idcr as regards the safe and lit condiUon of the 
'"^^liltJLl instruments, fl.ed or movable, ȣ the masters 
*..ii;^^^usi. ss. He is also entitled to eomp.nsation lor harm 
^«<U/t-2^„,„„ed through the nogUgonco of another servant 
^•^-r/re-rcising superintendence, or by the eSact of »poc.fic 
^«t;^te order* Z rules issued by the master or some one 
;?/ ^'' representing bin.; and there is a speeial vnder prov.s.on 

^ for the benefit of railway servanis, .vhich urtually 

abolishes the master's immunity as to railway f^"*"";'" 
the ordinary sense of that term. So far as the Act has 
any principle, it is that of holding the employer ans« en- 
able for the conduct of tho«> who a-, m delegated 
authority under him. It is noticeable that almost all the 
litigation upon the Act has been caused e.ther bj x s 
minute provisions as to notice of action, or by desperate 
attempU to evade those parts of its l-<?-«; ;''-^ " 
plain enough to common sense. The extended s ope of 
the Workmen's Compensation Act has not wholly sup- 
planted resort to it. The text,and references to the 
decisions, will be found in the Appendix (Note B) . 

R«^«., So far as the Act of 1^80 goes, we have in a matter of 

r^- general public importance and affecting large clas es of 

r.:l. !^Lns who are neither learned in the law nor we 1 abh, 

Z procure learned advice, the foUowmg singularly m- 

tricate and clumsy state of thmgs v„u;iitv for 

First, there is a general rule of a master s hab.hty lor 

his servants (itself in some sense an exceptional rule to 

'^t:X the immunity of the master where the person 
injured is also his servant. 


Thirdly in the word, of tho marginal note, of tho 
Employers Liability Act. "amcndmont of law" by a 
series of elaborate exceptions to that immunity. 

Fourthly, "exceptions to amendment of law" by pro- 
v.«K.s which aro mostly but not wholly re-statements of 
tao common law . 

Fifthly minute and vexatious regulations as to pro- 
cedure .n the cases within tho first set of exceptions {y). 

The Workmen's Compensation Act, 1897, now super- Work- 
sedod by the Act of 1906, introduced a wholly Lw ?' 
principle (.), which is really in tho direction of com- «'"?"• 
pulsory insurance, though the primary liability is on the "''■ 
employer, and he is left to insure or not as ho think, 
fat. The applaoation of this principle, at first limited to 
the employments expressly ^ntioned, and extended to 
agricultural labourers by an Act of 1900, also supoi-soded 
now covers all contracts of service except in certain ex- 
oepted cases. 

The reported decisions turn wholly on the provisions of 

(y) Ab to tho question of policy, 
«ee for very full information and 
discusnion the evidence taJicn by 
the Select Committees of the 
House of Commons in 1876 and 
1877 (Pari. Papers, H. C. 1876 
872; 1877, 285). And soo the 
anal report of the Labour Com- 
mission, 1894, Part II. Appen- 
dix V. (Memorandum on Evi- 
dence relating to Employers' 
Liability). As to foreign legis- 
lation resembling the Employers' 
Liability Act or the Workmen's 
Compensation Aet, see Pari. 
Papers, 1905, Cd. 2458. 

(2) The duty created is "a 
newly imposed statutory duty, a 
duly which is wholly independent 

of any wrong-doing by tho party 
to be charged, but is made by 
statute part of every contract of 
employment to which the Act 
applies." Per Farwell L. J., 
Darliuglon v. lloicoe If Soiu 
tl907] 1 K. B. 219, 230, 76 L. J. 
K. B. 371. In practice the real 
defendant is almost always an in- 
surance company. From the point 
of view of a legislator desirous of 
reducing litigation, there aro both 
advantages and disadvantages 
about this. Claims may be dis- 
puted which a just employer 
would perhaps have allowed, but 
certainty in the interpretation of 
the law will be sooner attained. 



A .v.. rnlM made under them, and thro* 
the AcU and the '"'" °T i.^ „| tort», the right 

" ;:X-" pother actionahle wrong; a large and 
on neg igence or any __^.^^^^ ^^^^^^^^ „f 

increasing proportion of ttiem a ^^^^ 

fact and evidence. ^f-^^J;; ^ any P-tical use, 
account of deciBions of thi. kind '» °' 'J J ^^ 1;^^ 

r "' t rtCrrrr .:l ^ ^eferred fo. 
Stfor^Iir'the special — ted ..ition, of 

the Acts (a) . . 

the Workmen'. Compen»tion 
Aot, 4th «d. 1910; Bevcn on tm- 
plover.' Liability nd Workmen* 
t„n on Employon' Lmbility 
(with notM on Can«lian law by 
A C Forelor Boulton), 3rd ed. 
(mueh enlarged) 1907; Bu^g"" 
knployer.' LUbilily and Work- 
m„„', CompenBation, 8tU «• 
1910; Knowlee on Compemalion 
for Injnrie. to Workmen (on the 

Act ol 1908), 2nd cd. 1907; 
EUlott on the Workmen'. Com- 
™,„«lion Aot, 1906, 6th ed.lflW; 
Willi", Workmen'. ComponMlwn 
Aet, 1900, nth «»■ lM»i ^"- 
minger on the WoAmen. Com- 
pen«tion Act., 1906 and 1909. 
2nd ed. 1910. Many of the 
former decUion. are on quction. 
which can no longer arise under 
the enlarged and .implificd pro- 
,Uion. of 1906 ; but many of them 
remain applicable or instructive. 




We have considered the general principle, of liability CoDdi- 

for oivU wrongs. It now becomes needful to consider the 3Sm' 

general exceptions to which these principles oro subject, '"•''"•r 

or in other words the rules of immunity which limit the j^™' 

rules of liability. There are various conditions which, ^^HZighi. 

when present, will prevent an act from being wrongful 

which in their absence would bo a wrong. Under such 

conditions the act is said to be justified or excused. And 

when an act is said in general terms to be wrongful, it is 

assumed that no s.ich qualifying condition exists. It is 

an actionable wronp, generally speaking, to lay hands on 

a man in the way of force or restraint. But it is the right 

of every man to defend himself against unlawful force, 

and it is the duty of officers of justice to apply force and 

restraint in various degrees, from simple arrest to the 

infliction of death itself, in execution of the process and 

sentences of the law. Here the harm done, and wilfully 

done, is justified. There are incidents, again, in every 

football match which an uninstructed observer might 

easily take for a confused fight of savages, and grave 

hurt sometimes ensues to one or more of the players. 

Yet, so long as the play is fairly conducted according to 

the rules agreed upon, there is no wrong and no cause of 

action. For the players have joined in the Tame of their 

own free wiU, and accepted its risks. Not that a man is "tU^Jt,^^ 

bound to play football or any other rough game, but if he "V^-H!!^. 




doe. ho mu.t abide iU ordinary chance. Here tho h«m 
Z. if not ju«tified (for. though in a manner unav^.d- 
S it wa. no. in a legal .n«, necc»r,). .. nevcrtljoW 
oxcJ^d (fl). Again, defamation .. a wrong; but ther. 
ar certain occaaL on which a man may .mpun.ty 
„ako and publish untrue .tatement. to the prejudice of 

Mother. Igai». "'- »'- '"" "' »'•"""■" """ '".'" 
. t d to I a precept of law; yet the.- are d.ver. 
hing- a may freely do for hi, own end,, though ho 
well know, that hi. neighbour will in .ome way be the 
worse for them. 

Some of the principle, by which liability i. excluded 
„o apicable indifferently to all or mo.t kind, of ,n,,ury, 
while other, are conilned to .ome one .pec.e.. The 
Tule a. to " privileged communication." belong, only . 
the Uw of libel and .lander, and mu.t be dealt 
uoder that particuUr branch of the subject. So the ru^ 
:: to •■contributory negligence" quahfie. hab.lUy r 
negligence, and can be«l only m connexion w>th 
Z. ecial rule, determining such liability. W- 
like those of consent and inevitable acc.dont, on the o her 
ia:d. are of such wide application that they -not be- 
eonvenientlv dealt with under any °"«/P«'''^^^'^;J,^" 
class is aptly denoted in the Indian Penal Code (for the 
iTe or imibr principles apply to the law of er^ina 
UabiUty) by the name of General Exception.^ An J^" 
are tho exception, which now concern us. The foUowmg 
Im to be their chief categories. An action is w thiu 
Trrain limit, not maintainable in respect of the act. of 

(a) Justification sccmi to be 
the proper .ord when the harm 
■uBered i» iMcpiir.bly incident lo 
the perlonnance of a leg:.! doty 
„r the exerciM ft « common 

right- eicuio, "hen " " ''"' "" 
accident: but I do not know th.l 
the precine di.tinction i« »lw«y> 
possible to ohMrve, or that any- 
thing turns on it. 


political powpr callod ' acts of state," nor of judicial act.. 
Executive acts of lawful authority form another siitiikr 
floss. Then a cloiw of acts hiu to ho considered which 
may be called quasi-judicial, and which, also within limits, 
arc protected. Also, there are various caws in which 
unqualified or qualified immunity is conferred upon 
private persons exercising an authority or power hpeeially 
conferred by kw. Wo may regani all these as cases of 
privilege in respect of tho person or the occasion. After 
thc«! come exceptions which an> more an affair of common 
right: inevitable accident, harm inevitably incident to the 
ordinary exorcise of rights, harm suffered by consc^nt or 
under conditions amounting to acceptance of the risk, and 
harm inflicted in self-defence or (in some cases) otherwise 
by necessity. These grounds of exemption from civil 
liability for wrongs have to be severally examined and 
defined. And first of "Acts of State." 


l.—AcUof State. 
It is by no means easy to say what an act uf state A"" f« 
is, though tho term is not of unfrequent occurrence. On '"*'*' 
tho whole, it appears to signify^;!) An act done or 
adSltol-iy the prince or rulers of a forei^ITml^.ndcnt 
Slate in their political and sovereign capacity, and within 
thcJiaiita cf Uioir de jacto political sovereignty ; ;-2) more 
particularly (in the words of Sir James SU.phen) {h), "an 
iicLinjurious to thi' person or to the i)roperty of some 
persoa^wjip ia jiflt at tho time of that act a-autjo-t c) of 
JiisJ Majesty; wliicli act is done by any representjitive of 

(h) History of tho Criminal 
Uw, ii. 61. 

(r) Tliij includoi a frioadly 
alien livinjf in " temporary alicgi- 
aii(« "' under tlio proteetion of 

l^nglish law: therefore an act of 
state in this st i«e cannot take 
pluie in En^-lanU in time of 


KTOuod of 


[his] Majesty's authority, civil or military, and is cither 
previously sanctioned, or subsequently ratified by [his] 
Majesty " (such sanction or ratification being, of course, 
expressed in the proper manner through responsible 

Our courts of justice profess themselves not competent 
to discuss acts of these kinds for reasons thus expressed by 
the Judicial Committee of the Privy Council;- " The 
transactions of independent States between each other " 
(and with subjects of other States) " arc governed by 
other laws than those which nmnicipal courts administer; 
such courts have neither the means of deciding what is 
right, nor the power of enforcing any decision which they 
may make "(d). 

A scries of decisions of the Indian Supreme Courts and 
the Vrivy Council have applied this rule to the dealings of 
the Kast India Company with native States and with the 
property of native princes (e). In these cases the line 
between public and private property, between acts ot 
regular administration and acts ot war or of annexation, is 
not always easy to draw. Most of them turn on acts of 
political annexation. Persons who by such an act become 
British subjects do not thereby become entitled to com- 
plain in municipal courts deriving their authority from 
the British Government of the not of annexation itself or 
anything incident to it. In such a case the only remedy 

last cited. Cooh v. S^rigg [1899] 
A. C. 672, 68 L. J. P. C. 144, 
professes to belong to the same 
class, but it is by no means easy 
to understand cither the real 
nature of the facts or the ratio 
decidendi of the Judicial Com- 
mittee. See I.. Q. H. xvi. 1. 

{d) Secretary of State irt Couit- 
eil of India v. Kamachse Boye 
Sahaba (1866) 13 Moo. P. C. 22, 
76; Salomon V. Sec. of State, ^c. 
[1906] 1 K. B. 613, 75 L. J. 
K. B. 419, C. A. 

((.) See i>0M V. Secretary of 
State for Indi" '" f'onncil (1875) 
L. K. 19 Eq. 509, and the cases 


lame uT'' f- "^'" '° ""' """"'"■ ■'"'' ">" <>«•'=' - ">« 
same ,f the act .s originally an excess of authoritv. but is 
afterwards ratified by the Crown 

Sn in Ir "'"' r T"" """"'' ^'"P'-'" °'""»»». " 

.ntten by Mr. .Stephen, then Under Secretary of State 
or the Co „, by the direet.ou of Lord John Hn^et 
h n Secretary of State. It w„s held tha, the owne f 

for h.s b.., „« the effect ot the ratihcation of Captain 
ot state, for which no achon would lie." 

So far Sir James Stephen, in his History of the 
Criminal Law (,,). It i, „„,, , > /^ 'J° 

d.d on the „e..t page, that "us between tkolZi^, 
aad his subjeetsthere can, be no such thing raTaet 
•olstote. Courts of law are established Z^thT e"pr^ 
purpose of limiting public authority in i,! T 

ot the King, that command is no protection to the person 
.ho executes ,t unless it. ,s in itself lawful, an," 

whettntlsl f'^r"^™''^*^"^ ^"^"™ '" ""^-'" 
Whether ,t IS lawful or not" : a«, for example, when the 

Court of King's Bench decided that a Secrlr • of St 

had no power to issue general warrants to scrd, An " d 

mo pa,«rs and the like (A). The head of a depar tn^^ 

of State, however, cannot b.. presumed to authorise wr™ 


(/J (1847) 2 Ex. 167, 76 H. K 
is) Vol. ii. J,. 61. 

SrU.1:^* V. ,vw„„„„, „ 




Tloeroy or 

Power to 


! : 


committed by subordinate officers under colour of official 
duty; and ho will not bo liable for such acts mthout 
proof that ho has in fact authorized them. An action 
against the Lords of the Admiralty for alleged trespass 
by two marines and a civil engineer, no spcciBc act or 
authority of the defendants being shown, has been held to 
be misconceived (i) . 

Another question which has been raised in tho colonies 
and Ireland, but which by ito nature cannot come before 
an English court for direct decision, is how far an action 
is maintainable against an officer in tho nature of a 
viceroy during his term of office, and in the local courts of 
the territorv in which ho represents tho Crown. It has 
been lield by the Judicial Committee that the Lioutenant- 
kiovernor of a colony is oot.excmpt from suit in the courts 
bf that colony for a debt or other merely private cause of 
faction (fc); and by the Irish courts, on the other hand, 
that the Lord-Lieutenant is exempt from being sued 
in Ireland for an act done in his official or "politic" 
capacity {I) . 

An alien not already admitted to tho enjoyment of civil 

1,0 llatfif/h V. amchcH [1898] 
1 rh. 73, 67 L. J. I'll. 59; fol- 
lowed llaiiibridffc v. I'oatmatitn- 
Gcmml [19061 > K. 1). 178, 75 
L. J. K. B. 366, and sea pp. 85, 
86 above for tlio additional reason 
tiierc giien. 

(i) lixli V. Ml0i> (1841) 3 

Moo. P. C. 465, 50 R. B. 68; 

(Utfenting from Lord Mansfield's 

dictum in .U<u£|W v. tabrigm. 

Cowp. 172, tiiat " locally diirinn 

ills government no c'n:il or. crimi- 
nal iieli'm will lie aaainat him ; '" 

though it may bo that he is privi- 

IcgzS frjm peF=c-nal arn-ii whfrt? 

arrest would, by the local law. bo 
part of the ordinary process. 

i/) T.nli;/ V. Wodehousc, 17 Ir. 
v.. i.. l£. 618; Sidlivnn v. 
.s>r«rr,. Ir. H. 6 f. I.. 173, fol- 
lowing 7Vjirfy V. WrHmvrelaitd, 
27 St. Tr. 1246. These cases go 
very far, for tho Lord-Lieutenant 
was not even called on to plead 
bis privilcjfc, but thl Court stayed 
proecedinga against him on 
motion. As to tho eifect of a local 
,\ct of indemnity, ace Vhillijn v. 
K,j,r (1870) E\. Ch. L. U. 6 
(i. U. 1. 

«-outivc au.horitv C ' " p™""" '''' "■" '-«' 
-.V right to bo admitted to IX ^T' """" ™"'^'^ 

an independent p^owe'- is L .i '"T ""7""''"^ 
"--^^ of this count... Ztt'n ""' '" "" 

""i'acity; and this eJon i T ,'" * *"'■«'>- 

'■« - British subjoot rias ; ' "' "'""''^ f"" 

^-na. nnion bot«..n the C^or; f" ''" 
Hanover ,va. dissolved («) This "l f "'' ""'' 

«i''^.- one which not „ I " ""''"''"' 'n a 

of this work but I '' " "''' ''^>-'""' "- ^nl-jeot 
to mnnicip ', ' 'tZsl ""T''""'' ^ -* » 
Court of Appeal-' 'Ll ^"^ ^^P""'^'' ''•^ the 

independence of everv sovcrT'"'"™," °' "'" "'''"'"t'' 
international eon-it,; h c I^T *'' '"' "' ""> 

to respect the indepon c c . di "' V 7"'"'" ^"''^ 
sovereign state, each and eve X on 'd r "'"' "''"'' 
by means of ita Courts anv n . . '" '" "^"'"'^ 

over the person of at' "1 '' *"""'"'" J^'^^-tion 
otherstate oroverthenub • °"" ^ »'"'"'^^»''or of any 
- ;|estined to P^S^Cororrir ''"'" ""'"^ 

-^-dor(„), .Hough such so:ji;z:ri- 

p. C .s, ''^ "^' "» I- ^- affl^e, i„ .„, „„„,„ ^, ^^ 

■«■■»? »/ 7to„„„ ji«„.^ . i"-?^'"' ''»'"<> Wonging to 



pronortv bo within its territory, and therefore, but for th. 
commm". agree.nent. subject to its jurisdietion (p) . 
B™™^. If ,ve „.ay generalise frou, the dootriue of our o«n 
courts, the re.ult to be that an aet done by the 
authority, previous or subse.iue„t, of the government o 
a sovereign state in the exereise of d. /«do sovereignty (9) 
is not exan,inable at all in the eourts of Justus ot any 
other state. So far forth as it afleets persons not subjec 
■ to the govern„>ent in question, it is not e.xanm.ab e ,n the 

ordinarv n,.„t» of that state itself. If and so far as .t 
affects a sub,i,.ct of the sun.e .tate, it may be, and n 
England it is, exandnable by the courts .n the.r ordinary 
jurisdiction. In n>ost Continental countries, howevei-, if 
not in all, the remedy for sueh acts must be sougU before 
. »tK.eial tribunal (in France the Conseil d Etat: the 
preUminary question whether the ordinary eoui-t or the 
Conseil d'Etat has jurisdiction is decided by he Tribunal 
des Conflits, u peculiar and composite court) (r). 

2- Jiidkidl Acts. 
j^W ^•ext "S to judicial acts. The rule is that " no ,« tion 

i^ ,iU ,i„ against a judge for any acts done or ,vords spoken 

trained lnniu|to fraaonl? I* 
would Bocm lip lould not gi't tlifin 
back willimit submittin?; tu tin' 

H.1 Thr Piirleminl tl'IH'- 08901 

5 P. D. 197, 214. l> 


SMa; ,'f Mo'r \mi\ 1 Q. »• 

149, 63 I.. -T. Q. n. S"'' *'■ ^■. 

(q) 1 have not nu't with » '•■'- 
tinct .talcment ot tlii» qualitioa- 
tion in oxistinit autl.orlti™, but 
it i, eviH.-nt!v aMUmnH by Ihcm, 
and i« nt!-8«liry f»r tho rrmc-rvn- 
tion ot every'« murre.Rn 

rislils «ilbin its own jurisdietion. 
Plainly tlio eommand of a foreiRn 
government would be no answer 
to an aelion for tre-ipa'" '» I""''- 
or for the urroit of an alleged 
offender aj-ainst a foreiRn law, 
ivitliin the body of an UngliMh 

(r) Law of May 21, 1872; n, 
to the tribunal, nee Dicey, I^w M 
the fonstitntion, 7th ed. note si. 
|,. 855. llut the principle is 
ancient, and tlie old law is still 
cited on various points. 



m h,8 judical capacity in a court of justice" (s). \„d 

the exemption is not confined to judges of superior courts ■ 

It include, for example, magistrates sitting judicially (t). 

It IS founded on the necessity of judges being independent 

■n the exercise of their office, a reason which applies 

equal y ,0 all judicial proceedings. But in order to 

pstabhsh the exemption as regards proccKnlings in on V ^ ^ ^.„ 

inferior court, the judge must show that at the time of the f^f' ''^' 

allogec wrongdoing some matter was befo«. him i„ which ^^IS^ 

ho had jurisdiction .wherc^is in tlie case of a suporior ''^^ 

court It IS for the plaintiff to prove want of jurisdiction)- 

and the «ct complained of must be of a kind which he had 

power to do as judge in that matter. 

Thus a revising barrister ha/, power bv statute w<) "to 
order any person to be removed from his court who shall 
mterrupt the business of the court, or refuse to obey his 
lawful orders in respect to the same ■: but it is an action- 
able trespass if under colour of this power he causes a 
person to be remove.l from the court, not bcH.ause that 
person is then and there making a disturbance, but 
because in the revising biirrister's opinion he improperly 
suppressed facts within his knowledge at the holding of a 
former court (t). The like law holds if a county court 
.ludge commits a party without jurisdiction, and being 
informed of the facts which show that he has no 
.lunsdict.on(,v); though an inferior judge is not liable 
for ai: act which on the facts apparent to him at the time 

(») .Scull V. Slaiulield (1868) 
f.. li. 3 Ex. 220. 37 L. J. Ei. 
155, .ihicli Runii up tlm ptfi'ct cif 
many previous depinion». The 
authoritioj wen* reviowcit and 
t-onfirmed by thp C. A. in 
■inderatiii v. Oortir flgg.^j | 
Q. 1). 608, 71 L. T. 382! 

(<) Lair V. Lleiclliiu [1906| 1 
K. B. 487, 75 L. J. K. I!. 320, 
C. A. 

(«) 28 & 29 Vict. c. 36,8. 16. 

(J-) WiUiny. MtirltichlfiH (1876) 
1 r.x. I). 376, 45 L. J. Q. B. 689. 

(,») llotilden V. .V//i,V/V (1850) 
H Q. B. 841, 19 L. J. (J. B. 170. 


was within his jurisdiction, but by rca«.n of facts not 
then shown was in truth outside it (j) . 

1\ judge is not liable in trespass for wantof jurisdiction, 
unless he knew or ought to have known of the defect; and 
it lies on the plaintiff, in every such cMC, to prove that 
fact (o). And the conclusion formed by a judge, acting 
judicially and in good faith, on a matter of fact which 
it is within his jurisdiction to determine, cannot bo 
disputed in an action against him for anything judicially 
done by him in the same cause upon the footing of that 
conclusion (ft) . 

Allegations that the act compkined of was done 
"maliciously and corruptly," that the words were spoken 
"falsely and maliciously," or the like, will not serve to 
make an action of this kind maintainable against a judge 
either of a superior (c) or of an inferior (d) court, or any 
judicial officer (e) . 

li.bility There ore two cases in which by statute an action does 
^^ or did lie against a judge for misconduct in his office, 
"*"■ namely, if he refuses to grant a writ of habeas corpus 

in vocation time (f), and if he refused to seal a bill of 

exceptions (3). 

(c) ioiiMcrv. Earl of Radnor 
(1806) 8 Emt, 113, 118. 

(a) CaUcr v. Ilalket (1839) 3 
Moo. P. C. 28, 78, 50 R. K. 1, 13. 

(6) Kemp v. Xctille (1861) 10 
C. B. N. S. 523, 31 L. J. C. P. 
158, 128 B. K. 815 (an action 
against the Vice-Chancellor of 
the Univcraity of Cambridge), 
and authorities there cited. 

(») Fray v. Blackburn (1862) 
3 B. & S. 676; Anderion v. 
Oorri. [1895] 1 Q. B. 668, 71 

L. T. 382, C. A. 

(rf) Scott V. Stanafictd (1868) 
L. R. 3 Ei. 220, 37 L. J. Es. 

(e) Bottoviley v. Brougham 
[1908] 1 K. B. 584, 77 L. J. 
K. B. 311 (report of Offlclal Re- 
ceiver under Companies Wind- 
ing-np Act, 1890). 

(/) 31 Car. II. c. 2, a. 9. 

(5) 13 Edw. I. (Stat. We»tm. 
2) c. 31, cf. Blactatone, iii. 372. 


only .otdt'rrU;^""'-',-- '' appHoa „ot ...... 

.mdaaagcfh) If ;. „■ ,"*""" niilitaiv Jaw 

(arbitrators L o „:„?'""""! '" " '""'^d "^'-t to 
'anarbitrators.aahainVbT''":''" " '" " "<'^'"'"' ^i*" 
P"t- to dec- e a : tor 2 ™*"' ''■ "'^ ''^■•'^™-' "^ 

.•"'-„ tb™. «:; a pi: vr '" " ""*"""»" 

is not habio for errors .„ T ''" '""* '>°n<«tly, 

'iable for a corrupt or";!"^"™' ^'■^- «" """"' ^ 

or competence of his iudl *""""<>''. the rightncss 

-l-t-forthepifo" :T '''""'"'' ^"'o 
The doctrine of our ooZfT^- P'"'''»"'".v "able. 

3--~ExeciiUi^e Ads. 


H- L- n*, 45 L. J. Q jj • : 

,w ;r^- '■"»- ^■''-"' '; 

if' " !■■ J- «■ B. 567, which 
"Otter ,e„™, ,h.„ ,h„ ^^"^ '^ 

dj:?/,'""- ''''^"'' "»- th.; 

C- r. 187 (broker authorized bv 
KOOd.), 7A»r„-. ^„, ,,„ p ^ 

(*) Coolcy on Tort,, Ch 14 . 



01- process of law, nor by the necessary use of force for 
preserving the peace. It will bo observed thnt private 
persons are in many cases entitled, and in some bound, 
to give aid and assistance, or to act by themselves, in 
executing the law; and in so doing they arc similarly 
protected (l). Were not this the rule, it is evident that 
the law could not be enforced at all. But a public officer 
may err by going beyond his authority in various ways. 
When tiiis happens (and such eases are not uncommon), 
there are distinctions to bo observed. The principle 
which runs through both common law and legislation 
in the matter is thot an officer is not protected from tho 
ordinary consequence of unwarranted acts which it rested 
[vith himself to avoid, such as using needless violence 
to secure a prisoner; but he is protected if ho lias only 
acted in a manner in itself reasonable, and in execution 
of an apparently regular warrant or order which on tho 
face of it he was bound to obey (m) . This applies only to 
irregularity in tho process of a court having jurisdiction 
over tho aUeged cause. Where an order is issued by a 
court which has no jurisdiction at all in tho subject- 
matter, 50 that the proceedings are, as it is said, " coram 
non judice," the exemption ceases (n). A constable or 
officer acting under a justice's warrant is, however, 
specially protected by statute, notwithstanding any defect 
of jurisdiction, if he produces the warrant on demand (o). 

(0 Tho detailn o' tliis jubjwt 
belong to criminal law. 

(m) Ma>/or nf London v. Cox 
(irnTI L. R. 2 H. L. at p. 269 
(in oi.inion of judtriM, per Will™ 
J.). The law seenn to be undor- 
itood in tho >ame way in the 
United States. 

(m) The case "f ^Ac Maraha!- 

teti, 10 Co. Rep. 70 a; Clark v. 
Woodi (1848) 2 Ex. 395, 17 L. J. 
M. C. 189, 76 R. R. 632. 

(o) 24 Goo. II. c. 44, ■. 6. 
(Action lies only if a demand in 
writing for perusal and copy of 
the warrant is refused or ne- 
glected for six days.) 


The pr„>i.i„™ „i ,„.„,, j,„^„.^^,^_^. ^^^^^^^^ 

..«a . .cd pro,ec.,io„ ,„ p.,,,^,,, ,...„„^ „„j^,^ ,_^ '^; » 

■^", 1«.W. «l„eh ,ub«it„(,.s for ,hci,- various ,,.cmi.o 

rtuH shall h<. co.„n,euc.o(l «ithin six months (» 

As Jo „ ,uui..mistjk.' Pf fact, sue!, „, ..rrosting the bodv 
or t»k,„. th. goods of the ,vro„,„„, „„ „,L of the 
aw .s „„, excused in sneh „ oo,e. He ,„„st I„v h ndV n 
I'o person „r property a, his peril, the onh- ,. "p ion 


Aets done by navul and oflieers in the excsution 
or intended execution of their duty for th ™""*'°" 
of tiic riile« „r fi • • ' "'- "'forcemcnt 

on the consent ,n.p,ied (or indeed expr Jd) in th^t 
ot a m,ns jouuns the soryiee that he will abide by its 
regulations and usages- parlh- nn tl " .'"""o "3 '^ 

o-iven to n,i,ita,y l^y ,r:, u.e Th: " '""""'''' 
-i.-.t of opinion, hut TZJZZJZr''' 

-'..-■..) .e.,re a eourt-„,;::;:F:,cr;i: 

Acts of 
n«v«I and 

(/-JiOiS? Viet, .-.(il. Tlicr,. 
uro ,ub»i,liarj- but not „„im,,„r- 
'""' i"-">i»ion« as to costs: ,o„ 
IT- 211. 21(i, below. 

17) Nco (l/,i„i,„„,,, ,. Yo,„„, 
ll»29) 9 J!. J. c. 696, 33 Ji H 
■m; „„,„,. ,. „„„„„ ^^\.^ 

<1833)9i,i„s-. 171; />„„.,„„>.. 

I'alvnmi (1857) 2 C H x u 
m. 26 I,. J. ... P. 267;' and 
other autlioriliej eoUecte,! in the 

'■»«t of K„fli,|, i,.„^ r_„, ,,j 
Mew., ,„/, ,,(. sbcriir. 

i i 


cause (r). How far the orders of a superior officer 
justify tt subordinate who obeys them as against third 
person* has never been fully settled. But the Imtter 
(opinion appears to bo that tho subordinate is in the like 
•poaition with an officer executing an apparently regular 
civil process, namely, that ho is protected if he acts 
under orders given by a person whom he is generally 
bound by the rules of tho service to obey, and of a kind 
■which that person is generally authorized to give, and 
if the particular order is not necessarily or manifestly 
unlawful (»). 
o« other The same principles apply to tho exemption of a person 
J"?£ri- ""''"S "'"^'"' *" "'^"^ °^ ""^ P"*"*'" ^°^^ competent in 
«"■ the matter in hand. An action docs not lie against the 

Serjeant-at-Arms of tho House of Commons for excluding 
a member from tho House in obedience to a resolution of 
tho House itself; this being a matter of internal discipline 
in which the House is supreme (<)■ 

The principles of English law relating to tho protection 
of judicial officers and persons acting under their orders 



xvni. of 


(r) Johntlone v. Sutton (1786- 
1787) El. Ch. 1 T. R. 510, 548; 
afirmed in H. L. ibid- 784, 1 
Bro. P. C. 76, 1 E. K. 257. The 
Ex. Ch. thought tho oction did 
not Ho, bat the defendant was 
entitled to judgment even if it 
did. No reasonB appear to have 
been given in the Houao of Lords, 
(f) See per Willos J. in 
JfsiyWy V. Bell (1866) 4 F. S; 
F. at p. 790; this judgment 
appears to be treated as authori- 
tative by A. L. Smith L. J. in 
Markt V. Frogltg [1898] 1 Q. B. 
888, eOO, 67 L. J. Q. B. 
605, C. A. In time of war tho 
protection may perhaps bo moro 

extensive. As to criminal re- 
sponsibility in such cases, cf. 
Stephen, Dig. Cr. Law, art. 202, 
Hist. Cr. Law, i. 200—206; and 
Mr. II. L. Stephen (now a judge 
of the High Court of Calcutta) 
in L. Q. R. xvii. 87, on a recent 
case in Cape Colony. 

(0 Brtidlaught. Oouett (1884) 
12 Q. B. Div. 271, 53 L. J. Q. B. 
209. As to the limits of the 
privilege, see per Stephen J., 12 
Q. B. Div. at p. 283. .\s to the 
power of a colonial legislative 
assembly over its own members, 
see Barton v. Taylor (J. C. 1886) 
11 App. Ca. 197, 55 L. J. P. C. 1. 


(Act XVIII. of 1850J, 

There i» .till much ob.curit.v, and ecrtuiiily ,,„ general E»-"«l'» 
agreement, about the pmeiw nature and extent of the ^J:, 
justification for aeU done in the name of "martial law" ""• 
in time of war or rebellion; and the modern praeti.o of 
passing an Act of indemnity on the restoration of civil 
order, a politic and laudable practice in iUclf, makes it 
extremely improbable that an authoritative decision on 
ho eommon law wili ever be given. Some writers deny 
that nutsido the actual seat of hostilities there is anl. 
common law justification at all. Some think that Ihei'e 
18, and that it wholly c.wludes the authority of the Courts- 
one or two have propounded extravagant theories of a 
supposed Hoyal prerogative of the Crown in the matter 
(I venture to think it the better opinion that whatever in 
itime of war within the jurisdiction, is or reasonably 
W'P'-'ars necessary for the common defence against the 
JCing 8 enemies is justified by the common law, but that 
?n the absence of an Act of indemnity, (lie existence of the 
nec'essity and the reasonableness of ti.e action are to be 
determined by the ordinary Courts vvten ,<eace is rctorod 
It would not be useful to go into details here («^ But it 

(«.! 8eo a HcricB of artiflei by 
Mr. W. S. Holdsworili. sir II. 
Erio Richards, .Alp. t , nl , „„„. 
Ilia Jlunour Judye) Dtidd K.C., 
and the proMint writer, in L. Q. 
li. iviii. 117—158; Dicey, Law 
of the Constitution, 7th cd., 
-Vote X. in Appondii; and 
observations thereon in review of 
Mh cd., L. Q. R. ji.,. 230. In 
& parte 11. f. M«mt, [19021 
A. C. 109, 71 L. J. P. c. 42, the 
.InJieial Committee dec-idrd that 
there may he a .(ate of -.var justi- 

fying extraordinarj- action at a 
place where there i, not actual 
lighlinir and the ordiiuiry Courla 
are still sitting; and this, I 
humbly conceive, is right; but 
the judgment, which was on a 
petition for special leave to 
appeal, is very brief, and cannot 
lie s-iid to throw much light on 
llio constitutional question. The 
reference to the Petition of 
'light in the last sentence is not 
literally correct. 


hii own riHiponBibility. 

Acta of 


4 - Q\um-judin«l Aet». 
Z cl ..oblic imtitution* or p»«i."'™' "' 

s.. ......... .. .1- •' '"■•™';:;r^ ',:::, 

inn 68 L.J.Q.B.600. r..«.o<i 

Ch. Div. 366, 54 L. J. Ch. 233; 
rartridpt v. 0«»«"' f""'""'. 
*». flSW) 25 Q. B. Div. 90, 59 
L. J. Q. B- •"'■ 


Tho Inni of Court exhibit « ,urio.iH „ml ui,i,,„,. ,.x,„„,,l„ 
«f Krc«l p„„or and ..itliority ...v,.rci«..l by vol..„t»r, „„- 
uaorporutud .ocioti.., i.i a b.^ally unon.ulo,., „„u,„„r 
rhe.r powor. aro for »o.n« purpose qiuui- judicial, and vot 
tbcy arc not ,ubjt.,t to any nrdinurv inrisdiction . y1 " 

I a? 

,''■■■1 •■!■■, 

'I .Mil: ,'H 


<j:.'"s( ,1 , 

I'JI ll 

Tho general rule an lo quasi-ju I 
i« that per(ion§ exerciBinf; tliein . 
liability if they observe the • , , 
lino the particular statutor, .1 . 
any, which may prescribe ti ■. , ,, . 

fulcs of natural justice api .., 1,. „, .,, 
hat a man is not to be renio\ru r „ 
jship, or otherwise dealt with to In,-, lis 
liaving fair and sufficient notice ot ul„. . „.,^.,„ „„„,„„ 
him, and an opportunity of making his defcn,«; and that 
jtho doc.s,on, whatever it is, must be arrived at in «ood 
faith with a view to the common interest of the society or 
institution concerned. If these .onditions he satisfied a 
court of justice will not interfere, not even if it thinks the 
.lecsion was in fact «rong(«). If „ot, the art eon,,.Iained 

liu«s Rules of 
.. iwturat 
11 Jiuticesnd 
,1 "Pwi.! 

.r ""y. 

mimt be 
I he cibKrvnl. 

*" ■ '.emth'r- 
.»..„•■. ".Ihout 
llcfrcd .ijiainst 

()) Sue 11. V. Btuelien of 
/.iiicoln, l„H (1825) 4 B. t C 
M5, 28 K. R, 482: .Vm(, v. Dm- 
man (1874) L. H. 18 En. 127 
a L. J. Ch. 409. 

(') Ste Andrtw v. Mitcheil 
|190»] A. C. 78, 74L. J. K. B 

(o) Indtrniek v. Snell (1850) 
2 Mac. t O, 216, 86 B. R. 73 
(removal of a director of a com- 
pany); Daiikm, V. AnIrobM 
(1881) 17 Ch. Div. 615 (eipul- 
"ion of a member from a club) ; 
if. 13 Ch. D. 352; Partridge v. 
(itneral VouncU, ^c, note f«) 

iMt page, although no nolipc was 
given, tho council honestly think- 
ing thejr had nu option. In the 
caw of a club an injunction will 
he granted only in rnpect of the 
member', right of property, 
therefore where the club i, pro- 
prietary the only remedy is in 
damages; Baird v. »'«//• (1890) 
44 Ch. D. 661, 59 L. J. Ch. 673. 
Ai to objections against a mem- 
ber of a " domestic tribunal " on 
the ground of interest, .tlliiuon 
V. General Medical Council 
ri894] 1 Q. B. 750, 63 I.. J. 
Q. B. 534, C. A. 




ot will be declared void, and the person aScctcd by it 
maintained in hie rights until the matter has been properly 
and regularly dealt with (6). These principles apply to 
the expulsion of a partner from a private firm where a 
power of expuUion is conferred by the partnership con- 
tract (e) . 

It may be, however, that by the authority of I'arlia- 
uu-it (or, it would seem, by the previous agreement of tho 
purtv to be affected) a governing or administrative body, 
or tho majorilv o£ an association, has power to remove a 
null, from olHci or the like without anything in the naturo 
of judicial proceedings, and without showing any cause at 
all. Whether a particular authority is judicial or absolute 
must be determined by the terms of the particular instru- 
ment creating it (d) . 

ftuMtion. On the other hand there may bo question whether tho 
whether j^,^;^,^ „£ ^ particular office bo quasi-judicial, or merely 
f^Lu or niinisterittl, or judicial fov bono purposes and ministerial 
^': for others. It scou.s that ot common law tho returnmg 
^'»»* '•• or presiding officer at a parliamentary or other election has 

(ft) FUhfi- V. Keane (1878) 11 
Ch. U. 353. 49 L. J. Ch. 11 (a 
dull casis no notice to tlic nipm- 
ber) 1 Labouclitre v. lyhaniclifft 
(1879) 13 Ch. D. 346 (the like, 
no Bufflcicut inquiry or notice to 
the member, .allini? unil prooeed- 
inga of (general meeting irregu- 
lar); JJean v. Heimett (1870) 
L. K. 6 Ch. 489, 40 L. J. Ch 
462 (minister of Baptist chapel 
under deed of .cltlement, no suffi- 
cient notice ot spcciBe charge." 
citlier to the minister or in calling 
spc^-'iul meeting). 

(c) BNtiit V. Jhniiil (1853) 10 
Ua. 493, 90 R. B. 454 ; Wood V. 
.I'm.l (1874) L. R. 9 Ej. 190, 
43 L. J. Ex. 190. Without an 
express power in the articlea a 
partner cannot bo expelled at all. 
(rf) E.ff. Dean v. Bennett, 
note (It) above; Fiiher v. Jack- 
ion [1891J 2 Ch. 84, «0 L. J. 
Ch. 482 (power judicial); llay- 
inan V. Governor ot Ituffb*! 
Hehool (1874) I.. U. W Eq- 28, 
43 L. J. Ch. 834 (power 

" judiiiul discretion d rl 

;;» honest orro.- of j„jg^;,„,';;;;'°' '""""it a «v.o„,, ;,- ^^ 

>»" "o-v .a n,o,t oases :S:'r'r-'—«K.' 

Perforn, at tLeir peril " ''""" ^^^ " '"^l- tU.y nu,u 

«■•« "feo several ki^ l" ," ''""'''-'"diVia/ authoritv Th.,- 

>« exercised t, priva.e ';,::r'"7f---r rc^.„-^ .„ p^' 
protected ,n exercise ti^rfon thev /"'' '^'"""^ "''• --'- 
""d "' a reasonable ,.„d m„d,, 7 "'"'''' ^«''' f'">h 

<" of a person to wl.o.n it isdo , , ''" "' ^'""J'"". 
--^-) i» the „o,e obvio nS''"""-;-'' - " -hool- 
" 7*- *o say ..ore of 1^ Z """""" ^>^- " 
"v.l.zatio„ has considerabirdiir-r-'r''' """ "■"*"• 

"■odoratc eorre<.tio„ (A) ' '" """"^ ''^''^onablo and 


'^'. "«H R''e'''^■^•«■^• 
»P«ial rep„„ „fH„|., "." ,"" "■" 


•'"»"•. (1S73) I. ,i 8 r « " "■ 

*- I. I (■ l> " '■ ^- -189, 

'• — ]. 

""fined ,„ „,3 " " ■'«<'««rily 

'"" "" "..inr™! i,,f ■ ■".''■ '"• 

'- ■'■ K. I). 676 ''"""^' " 

"edited l,v n. , ' '^''" •>''- 

I ! 




Ofc«.to- Persons having the kwful custody of a lunatic, ami 
&1 Uose acting by their direction, are justified in using such 

^asonable and moderate restraint as is necessary to prevent 
(the lunatic from doing mischief to himself or others. 
W required, according to competent opinion, as pait of his 
treatment. This nwy be regarded as a quasi r^tornal 
power; but I conceive the jK-rson entrusted with it is 
bound to use more diligence in informing himself what 
treatment is proper than a parent is bound (I mean, 
can be held bound in a court of law) to use in studying 
the best method of education. The standard must b.- 
mora strict as medical science improves. A century ago 
lunatics wore beaten, confined in dark rooms, and thv 
like. Such treatment (■ouUl not be justified now, though 
then it would have been unjust to hold the keeper 
criminally or eivillv liable for not having more than th.< 
current wisdom of experts. In the case of a drunken 
man, or one deprived of self-control by a fit or other 
accident, the use of moderate restraint, as weU for his own 
benefit as to prevent him from doing mischief to others. 
may in the same way be justifieii. 


M 11 
■ 'I 

Of the 
muter of 
a ship. 

a. —Authorities of Necemty. 

The niaslvr of a merchant ship has by reason of neces- 
sity the right of using force to preserve order -ind dis- 
cipline for the safety of the vessel and the persons and 

and u not recognized ot this day ; 
but as a huHband and wife cannot 
in any case 3tie one another for 
as«aiilt in a civil court, tliis doc. 
not concern U-. Witc-beatinR 
«8i fiimicrly ; svifi'""' "*'ncc: 

Hale, Precedent* and 
insts, 207 (Knacx, A.I). ISS'i). .\- 
to impriaonment of a wife by Ji 
liu«l,and, Drg. v. Jneliimn [18H1 1 
1 (). B. 671. 80 L. J. Q. B. 34(;. 
n. \. 


property on l.„ard. Thu», ,f he haa rea.„nabi« (i) to 
W.eve that any „ailor or paa,enger ., .bout to raii a 

even be just:hed „, a case of e«reo» cUag.r .n .nfl^.ting 
pun^hment w.thout any iW™ of i„<,„y. But -in I 
l^^^ducL wUl ad«.u of the delay p.op«r for .oquiry 
^lua-^quiry should precede the act of p.iDMa».,„t und 
;• ■ ■ OlMiartj, charged should have the bom..ut of that 
■ruk, of muvarsal justice, of being he«d .n ius own 
dBi«ce (/,. In ,,et, when the immed.,,. .„...,.,.„„, 
of,ng for the safety .,nd discipUne of the »h.p /s 
P^t, the masters authority becomes a ,uu.i.judic,al one 
There are conceivable crcumstanoes i„ which the leader 
ot a part, on Und. sucn as an Alpiuc expedition, „,ight 
be ,,ust.i,ed on the.„„. p,,„„p,,i„ exercsingcon.pulsiou 
to assure the common safety of the pa,-tv. B„t such a 
ease, though not impossible. ,s not likely 1„ occur for 


'■— Damage incident tomilhorhed Arts. 
Thus far we have dealt with where some «n.cial „ 
^■iation of the partes justiHes or excuses H>c inten' "^ „1 things which otherwise would be actionable S?4 
wrongs. VVe now come to another and in some respects 'al'" 
a more interest.^., and difficult category. Damage '""""• 
au lered in co„se,u«,ce of an act done by another pcis™ 
no for that intent, but for some other purp,.c of L own' 
and not in itself unlawful, may for various rc.o.,.. be no 

I'; Thia i« essential, per 

"illes. J., A-,„, ,. Fr„„kl,„ 

(18J8) 1 F. s V. 380, 115 H I! 

(*) Lord Stowell, /iu dtUi- 

mt' (I824J 1 Uaj,,. 2f,, .7^. 
33 fi. n. 717. Tht, judgm,.n, i, 



ground of action. The general p.eoopt of law is cou,- 
, monly stated to be " Sio utere tuo ut alienum non laodas. 
If this were literally and unive.^ly applicabi. a 
would act at his peril whenever and wherever he acU.d 
otherwise than as the servant of the kw ^uch a s ate 
of things would be intolerable. It would be ur,p«sible, 
for example, to build or repair a wall, unless in the n.uldle 
of an uninhabited pUin. But the precept is understood 
to he subject to large exceptions. Its reel use is to warn 
us against the abuse of the more popuhu' adage that a 
man has a right to do as he likes with his own ,lj, 
which errs much more dangerously on the other .iUf. 

There arc Umits to what a man may Jo with his o«iK 
and if he does that which may be harmful to his neigli- 
bour, it is his business to keep within those limMs. 
Neither the Latin nor the vernueuUr maxim will h.lp us 
much, however, to know where the lino is drawn^ Uio 
problems raised by the apparent opposition of .ho two 
principles must be dealt with each on its own footii.g^ 
We sav apparent; for the law has not two object., but 
one that is, to secure men in the enjoyment of tho.r rights 
and of their due freedom of action. lu its moat gemral 
form, therefore, the question is, whoro does the sphoreol a 
mans proper action end, and aggression on the sphere ol 
his neighbour's action begin? 
U^^ The solution is least difficult for the lawyer when th.. 
'""^r Question has been decided in principk- by a sever ,«„ 
TaS^'ea Eire. Parliament has constantlv thought fit to 
'"""■ direct or authorize the doing of things which bu, lor I hat 
direction and authority might 1« actionable w,o„,s. 
Vow a man cannot hr lioUl a wrong-doer .,. a . m.rt of lau 

((; rf. Gaiiw (D. 50. IJ. "i" <"''■ 
facere. qui »0" iuii' utitnr. ' 

•Niillus viiiftiir a-.l- 



for a,tmg m »,„t„rn>it,v «itl, thn direrlio,, or ..llowancoof 
the ,aptem- U's^ul powor in tho Sbito. 1„ othoi- words 
! no „ct,on wilJ Ih! for .loii.ff ft,., the Lo^.i,la(„rc 
.h.8 authorizH, if it he ■!„„,. without .„.;rliKon..., .UthouffhX ^*cc. 
It do« oce»8ion .hi.nuKo to »„y onf." The meaning of / ^^ ^ 

the qualiHcationwill ap|»ar inimodiatelv. Siihiept thcwto 
■'tho mnx-dy of the party who .ullVrs ih;. In»,'i, ..onHned 
to recovering such con.p.'nsation ' -"if aiiv' „■. the f egis- 
loture h„. thought Kt to give him ■ ,„ . [„,tca,l of th- 
ordmar( ,,ue8ti»n «he(hcr a wrong l,a» b,v„ ,h„„. there 
can onl, be n ,|«„fi„„ whether tb,- sp,K,„l power which 
hm been exercised « .oupk-J, by the sunc authoritv that 
create.1 ,t. w,th a special duty to make .ompcs.iion for 
incidental dimage. The authorities on this subieC. arv 
voluminou.. and diseursive. and exhibit notable dilTerences 
of opinion. Those d.Herenees, howe, r. t„rn .hiellv on 
the appl,o.,tion of admitted principl,., to p-u-tienlar fact. 

and oi> the constructioi. of p ,r(i,., enactments. Thus it 

has been disput,.,! whether the ,,,„,p,.ns.,ti„„ given by 
statute to perscms who „rc ■ injuriouslv alleciH" b"v 
authorised railway «orks, and by ,!„, same statutes 
depr„ed of their com„mn-hnv rights of action, was or 
was not c«-extonsiv,. « i, U the rights of action expresslv or 
bv impheation t ,ken awav: and it has been decided 
though contrary to the general principles on which tho 
right of eminent ilomain is cxereised in all civiliz,^ 
nations, and not without doubts and weightv dissent tha, 
111 some eases a party ,vho has .uflcred material loss i- |,-ft 
without either ordinary or special romedv n). 

iii< \^,r<\ Fila'kliuri,, 
Pui^imttu* ul Biiiui Jt"-trou 
(1878) 3 Xpjj ("a, ar p. 4,5.^; 
Cnletlamiiit Jt. I'n. v. I/'..//,, ■« 
Trmlett (1382) 7 .Vpp. („. „( 

V.-m. M. :.,.,, 1)..,,^ /■,„.(,.„ V. 
l,-if,l„ f|««4-6) I. ij I I, 1^ 
nt p. 112. 

(n) ll«,„„„.,,„i,/, K. (■„. V. 
/f™w (1869) r,. H. 1 H. L. 171, 


Ko MCkifi 
for UB- 


Apart from tb» question of stiitutorv com|K'n»atiou, it 
it settled that no ictioii uan 1» maintained for loss or 
inoonv«ui«n<ip which is the iieoessurv consequnnoc of an 
authorized thing h«i«B ilone in an authorized manner. A 
person dwelling near a railway eonstruited under the 
authority of Parliament tor the purpose of being worked 
by locianotive engines cannot complain of the noise and 
vibration caused by trains passing and rep»««ing in the 
ordinary course of traffic . howeyw unpleasant he may find 
it (o) ; nor of damage caused by the escape of sparks from 
the engines, it the company haa used due caution to 
prevent such escape so far as practicable (p;. So, where 
a corporation is empowered to innkc a river navigable, it 
does not thereby become hound lo keep the bod of the 
river clear beyond what is required for navigation, though 
an incidental result of the navigation works may Iw the 
growth of weeds and accumulation of silt to the prejudice 
of riparian owners (g) . 

38 L. J. U. B. 265; A.-G. v, 
Mtlropolitnn K. Cc. [1894] 1 
Q. B. 384, 69 L. T. 811, C. A ; 
Baft FremantiB Corporatuin v. 
A„noi. [1902J V. C. 213. 71 
L. J. P. C. 39. 

(o) Hammertmith S. Co. v. 
Brand, last notv, itmfirraing and 
extending Hex v. Pecie (1882) 
4 B. Ji \i. 30, 38 H. R. 207. 
where certain mrnibers and ser- 
vunte of the Stockton and Dar- 
lington Railway Company were 
indicted for a nuixance to persona 
uaing a high road near and 
parallel to the railway. Lord 
Bramwell mnat liave forgotten 
this authority when lie said in 
the Court of Appeal that Sex v. 
PtaBp waa wrongly deoidi-d (6 
Q. B. Div. at p. 601). 

(/>) raughffn v. Taff I ale S. 
Co. (1860) Bi. Ch. 5 H. iL K. 
679, 28 L. J. Ex. 247, 120 
R. R. 779; C. !■. R. ''"■ 
V. iPo» [1902] .\. C. 221), 71 
L. J. P. C. 51. See below in 
Ch. XII. So of noise made by 
pumps in the authorized )<inl(ing 
of a shaft near a man's land or 
house; llarrilim v. Soutkwark 
ami Vaurhall Water Co. [1891] 
2 Ch. 409, 60 L. J. Ch. 630. 

{q) Cracknelt v. Corpjralion 
of ThHford (1869) L. R. 4 C. P. 
629, 38 1j. .'. C. P. 353, decided 
partly on the ground that the 
corpo'. .on were not even en- 
titled to . .iter on land which did 
not belong !o them to remove 
weeds, &c.. fiT any purposes be- tho.-o of the navigation- V 


But ia.i«dei- to secure thi» ,u„„u«it.v the ,,o«e.-» U«„nd 
■ionierred by the Wi.lature must bo exercised without ^"^^ 
Wgllgeaoc. or, m u is perliups bettor oxpro»«'d «ilh i»5«™« 
.ludgflumt and eautioufr.. For daumge whi,!, .ouM '^^' 
not have been avoided by any reasonably practicable '"'"" 
oaro on the part of those who are authorize,! to exercise 
the power, there is no right of action. But thov umst 
not do needless harm; and if they do. it is a wrong 
against which the ordinary remo<lies are available If 
an authorized railway comes near mv house, .■ind dis- 
turbs me by the noise and vibration of the trni„« it 
may be a hardship to me, but it is no wrong. For 
the railway was authorizeil and niudo in order that 
trains niight b<; run upon it, ami without noise and 
vibration trains cannot be run at all. But if the 
company makes a cutting, for example, so as to put 
my house in danger of falling, I shall have mv action: 
for they need not bring down my house to make their 
cutting. They can provide support for the house, or 
otherwise conduct thoir works more carefully. - \\^^en 
the company can construct its works without injury to 
priaite righU, it is in general bound to do so' i',,\ 
Hence there is a material distinction between rase>. ^'■^f^-'^i 
where the Legislature "directs that a thing shall at all 
events be done " (I), and those where it only gives n 
discretionary power with choice of times aiid places. 
Where a discretion is given, it must be exercised with 

rather similar la-e, but dccitlrd 
tlie otlier way in tliu lust resort 
un tlie construction of the par- 
ticular statute there in ({uestion, 
IS Geddia v. Proprictora »i Bonn 
It,-., rruir (187«; 3 App. Cii. 430. 
'racknell's e^iar seems just on the 

line: cp. JliMoe v. ff. E. Jf, Co., 
note ^«) below. 

(r) Per Lord Truro, /.. f 
.^. /(', /.'. C„. V. limdlty (18S1) 
3 Mac. i: U. at p. 341. 

I») llitcae V. a. E. II. Co. 
11873) L. R. 16 Ell. 636. 

1 ' I' .Vpp. I'a. 203. 


nigarJ to tho common righU ot otiiers. A publio body 
which i» by statute empowered to set up hospitals « itbiu 
a certain area, but not cmpoweriMl to set up a hospital on 
anv specified siU', or required to set up any hospital at all, 
is not protected from liability it a hospital islahlished 
under this power is a nuisance to the neiKlihours («;• 
.\i cveu where a particular thing is required to bi^ 
done, the K„r,l.,.. nf proof is on the person «liu has 
ta >' ' to show thot it caniiflf he done without. 
n.-v .g a nui«ance(x) . .V railway lomiiany is ,iutlioriiK>d 
U acquire land within specified limits, and on any 
part of that land to erect workshops. This does not 
justify the company, as against a particuhir house- 
holder, in building workshops bo situated (tiiough within 
the authorized limits) that the smoke from them is a 
miisanei' to him in the oetupation of his house (1/ . 
lint a statutory power to carry <attle by railway, and 
provide station yards and other buildings for thi> reir|.- 
tion of cuttle and other things to be carried (without 
specitication of particular places or times., is ineidenlal 
to the general |iurpo8cs for which the railwiiv was 
anthori?.eil, and tlic> use of a piece of land us 11 latlle 
yard under this power, though such as wouhl lie .1 
nuisance at coiuniou law. iloes not pive iiii\ right nl , Imn 

hirt V. Hi'! (1881) 6 App. Co. 
IM; t^l'- Ixijiifrv. Londnn Tr>i»t- 
«■«,. C... I 18931 2 Cli. .588, 63 
I. J. Lh. 30; r. P. H Cu. v. 
Park,' [18991 A. ('. 535.6s L- .1. 
P. C. 89. 

(*) .UturHeiz-tjeiu'rvi v. (/'«■ 
Lkfkl omI (■„*» Co. . 18771 7 rh. 
D. S17, iil, 47 L. J. t'h. 534. 

^y) Rajmnhtnt Bm*- v. Emt 
lH*i<i R. Cu. (HiKli Court, Cal- 

,iiitu), 10 h™. l. h. an. (/u- 

v.licllicr llii' III' cim-i-ti'i!t ivhli 
l.muloii mid Uriijhh,,: II. i„ v 
TrHnitfit, cited in the next ntilr. 
In Joi-dmii, \. Hiill.j,,. .\r. (,■:• 
Co. 11H9KI 2 I'll. ■m. «S L. J. 
I'll. 457, i . A., liiibilitj tor iiny 
iiuisance hftd liei-n exi>re*«ly prc- 
scive;i by the governinL' .-tatutc. 
See, huweior, BaHiiiK',-- ti"d 
Potomac R. K. v. HfH *.,- 
liil Chnrcli (1883) 108 I'.S.Si:. 


«" '"Ijoiniiijf ocouiii™ 1-1 vi.. 1, 

''"toffl.^v./>e«e. ■'' "' ^'""•''' '• Z^'". 

»"^'l' «..,>l,t that tlwT ' "*'' """"' '•""'■'■>• of 

«- hold ,'. ;, Z-niT' '""T"" '"'""^'' ""• -''■ " 

"- t-e.. „,.v o/ :; i ';,r r' -"'■'' '•»'■••■■" «.« i., it..if 

I'll as aL-ain^t tli,. ,. . '''"'-'■ """ »'o"ff- 

••yin,iute;l(:) """"""■""""""''^''""^'^■-''™'"«' 

-'-'>vi...iu.ti„:j H ™;: '";;'"t""''--- 
"'^— , Honof::^,!"'''" ''r^''^"''^*^ 

«i-nbv l',„,„™t,„„7ni, """"","""'"'•'■'■' 
"'"""" " »"-'■-. if .1.. <■ u "■ -T ''" ""'■'-■" 

""■ l-'l .v.ort ,„ „„tl,.„. '° '"'■"'■'' "'"■ '"" i" 

ii ' "^' " '""sanoc if it i, „„„„. 

""■'•""«'n„ti„„„fth,.»urk8-(t). ■ '"' 

^" Ja, 55 L. J Of, IS. *^ 

"'K ti,e clcasion of the Court of 
Appoal, 09 ,.,, ^j.^ ^^ 

(1H86J 15 (J. II. i,i,, , jj j_ J 

flrma.,,,,,. „„ ,„,„,„ ^.^^ " 

'-•1U...C.,, (.. J., 29 CI,. Di, 
M |). 1(18. 


188 (iKNERAL EXCtaTTlONg. 

, An authority ttocompaiiied liy compulsoiy |)0\vcib, or to 
be exeroiaed concurrently with authoritiee i-juutem nmerit 
which are «o aocompanied, will, it iociM, be generally 
treated aa absolute; bat no single tost can be assigned aa 
decisive (c) . 

from Uw' 

S .—Inevitable Accident. 

In the case we have just been considering the act hy 
which the damage is caused has been specially authorized. 
Let us now turn to the class of cases which differ from 
these in that tlve act is not B|)eeittlly authorized, but is 
simply an act which, in itself, a niun niuy lawfully do 
then and there; or (it is perhaps bettor to say) which 
he may do without breaking any positive law. Wo shall 
assume from the first that there is no want of reasonable 
care on the actor's part. Kor it is undoubted that if, by 
failure in due care I cause harm to another, however 
innocent my intention, I am liable. This has already 
been noted in a general way (d) . No less is it certain, on 
the other hand, that I nm not answerable for mere 
omission to do anythin),' which it was not my specilic 
duty to do. 

It is true that the very fact of an accident happening 
is commonly some evidence, and may bo cogent evidence, 
of want of duo care. But that is a question of fact, and 
there remain many cases in which accidents do happen 
notwil-istauding that all reasonable and practicable care is 
used. Kven the " conaunmioto care'' of an expert using 
his best precaution in a matter of siKjcial risk or im- 
portauoe is not always successful. Slight negligence may 

{ct Sec csiieiially Lord IJlack- 
burn'a opinion in London and 

Brighton It. Co. v. 
(d) 1'. 36, above. 

of the 


with the oia„ ri^^,::L:"' ""'"^ '"'- '° "" ""'^ 

able ...d o„erul .an L; ' ^1^^' "'] '" " — " 

mean absolutely incvitahl« ft i , '"'"' ""' 

not bound to aJat a but T' ' '" """^'''""'' ' -' 
."Oh precaution a« a ^o .Vr"' ''"', "™'*'"''''' '■'• ""^ 
then and thor« coulJ "'""'''''• """■ "J"'"? »urh un act 

o^cb.i-,Tu::;r.^jr: ;:r. '- "- -" 
the ;::Lrb:::::;rr:^'^"' -'i -"^ -'""™ »' - - 

- problem at al W T "'• ™"'" ""' """•" '" ^'^wi^ 

-pt.n, -wtabJidei :rrj7;r/" r --^^ 

"""u u) 06 angrv without inauirv H„ ii 

"■> "^-'gn or ncghgence. And one c„n- 

*-,„„^ (,875) r.. p. ,„ e;; „"'";'•',;•-'''■'*'•••• ^- «■ »« e,: 


itxaocon »isoiunoN tist char 


^ fail 

1^ l^ 1^ 



teSJ Eoi, Ban aire.) 
(7t6) 28B~S9B3 -To. 



not soe why a imm is to be made uii iiisuit'i- uf his 
neighbour aguiust Iiarni which (by our liypotliesi^) is no 
fault of his own. For the doing of a thing lawful 
in itself with due cure and eaiition caunol be docuied 
any fault. If the stick which I hold in my hand, and 
am using in ii reasonable manner and with i-easonable 
care, hurts my neighbour by purr accident, it is not 
apparent why I should be liable more than if tlie stick 
bad been in another man's hand (/). If we go I'ar back 
enough, indeed, we shall lind a time and an order of 
ideas in which the thing itself that does damage is 
primarily liable, so to six-ak, and through the thing its 
owner is made answerable. That order of ideas was 
preserved in the noxal actions of Komau law, and in our 
own criminal law by the forfeiture of the ollending object 
which had moved, as it was said, to a man's death, undei- 
the name of doodand. But this is matter of history, not 
of modern legal policy. So mucli we may eoneede, that 
when a man's act is the apparent cause of mischief, the 
burden of proof is on him to show that the consoijuenne 
was not one which by due diligence he could have 
prevented (^). But so does (and must) the burden of 
jproving matter of justitication or excuse fall in every case 
on the person taking advantage of it. If ho were not. 

(/; Troipa<8 for aaaault by 
striking the |>1aintiff with a svtick 
thrown by the defendant. I'lea, 
not guilty. Tlic jury were di- 
rected that, in the absence of 
evidence for what purpoae tht- 
defendant threw the stick, they 
might c'onrlnde it was for a 
proper purpo-ie, and the Htriking 
the plaintiff was a mere accident 
for which the defendant wa* not 
answerable: Aldirton v. U'aistcU 

(1844) 1 C. ii K. 358 (before 
Rolfe It.). Thia. if it conid be 
accepted, would prove more than 
enough. But it is evidently a 
rough and ready summing-up 
given without rctercnee to the 

(g) Shaw C. J. wnuld not con- 
cede even this in the leading 
Massachusetts case of Broini v. 
Kendall. 6 Cush. at p. 297. 



h^ a .ground of UnbiUty Re;""'*"'"' -'"*-" 's ȣ!."' 

^ f -^ ™n-qu,.„oo3 of ,„, ,oL":;;. rr ;""" ^"^ "" 

™'-r<'nf opinio,, „f English l„„ './""^ '""'' "'"' "'e 

»» caroful examination M^/ "''''■""''""'" ho «.„ 

'e-.t,, of the dicta .;:;::,::;,:-' '™"°" -- '-« 

«very ease the reaj „„es,ion h, """'""• ^" »'""«' 

-«- or p,«„din,; Mro:;":,:: '" "^ "^'"^ ^°™ -^ 

"> Ro„,„n „, „,„d„,„ Continent. 7 n"." '"''' '''"'^'•'"" 

('* ) Scfi (in tl.„ .. 1 . 

J VV ;'■" ."'«"■• "' 'his 

>■'■■ 9«, S 11 ;«,e,,. 145, below. 

p ,""' '™i""«til."fiai.3 211 
■felenJcdi raei eau-a L.u • 

™ I' tlio mailer u( a »lnv,. 
moaning to strik,. H,„ i ' 

''™t«llj strit« a f ' ° ''""' "■■'"■- 
1". de in.urii,, 4 r„ a ' 

I3li l> a< i„ • . ' "'"'I'll, 



oura, and of the highest iiutiiority. We shall llierel'oro 
sp«ak of those first. 

Americtin lu thc ^ i^QzSljM^J^^JdO^^ i^) ^^^ defendants, a firm of 
iTn Xitro- Carriers, received a wooden case at New York to l>e can'ied 
fli/t«rine jq California. "Tliere was nothing in its appearance 
calculated to awaken any suspicion as to it? contents," 
and in fact nothing was said or asked un tbit score. On 
furiving at San Francisco it was found that the contents 
(whicli ''had the rippearanco of sweet oil") were leaking'. 
The case was then, according to the regular course of 
business, taken to tho defendants' offices (which they 
rented from tho ph»' tiff i for examination. A servant o^ 
the defendants pru^ -od to open the case with a mallet 
and chisel. The contents, being in fact nitro -glycerine, 
exploded. All thc persons present were killed, and much 
property destroyed and the building damaged. The action 
was brought by the landlord for this last -men tinned 
damuge, including that suifered by parts of tho building 
let to other tenants as well as by the offices of the 
defendants. Nitro -glycerine had not then (namely, in 
1866) become a generally known article of commerce, nor 
weto its properties well known. It was found as a fact 
tiiat the defendants itad not, nor had any of tiic persons 
concerned in handling the case, knowledge or meane of 
knowledge of its dangerous character, and that the case 
had been dealt with ' in the same way that other cases of 
similar appearance wore usually received and handled, and 
in the mode that men of prudence engaged in the same 
business would have handled cases having a similar 
appearance in tho ordinary course of business when 

theory of the 16th — Itith centuriea 
un action on the case would not 

lie on such facta, but trcdpaw i 
i:t (irtnis would. 

(/) 16 Wall. 624 (1872). 


ignorant of their contents. " The defendants admitted 
their liability as for waste aa to tho premises occupied by 
them (which in fact they ri-p;iired a» soon m possible after 
the accident), but disputed it as to the rest of the 

The Circuit Court held tho defendants wore not further 
liable than they had admitted, and tlif Supremo Court of 
the United States aflirmod the jud;,'mont. It was liold 
that in the first phce tlic defendants were not boimd to 
know, in the absence of reasonable grounds of suspicion, 
the contents of packages offerod thorn for carriage and 
next, that without such knowledge in faot and without 
negligence they were not liable for damage caused by th' 
accident (m). " No one is responsible for injuries .-cault- 
>2Sl™™ unavoidable accident, ^Jujst engaged in a Liwful 
•"""iMSs. . . . Themeasure of oaxe a -t accident 
wJuah-jinfi must take to avoid responsihiUi that which 
a-p£iaon.jir ordinary prudence and caution would use H 

'" ,i»ffii£ted-4ad.tlie whole risk 
Ufiin) hia nwn." 


of Su- 
Court : no 
for Hcci- 
roHult of 
luwful HOt 


The Court proceeded to cite with approval tjie case of ,i,o,r„-r 
Brown v. Kendall in the Supreme Court of Massachu- ,?J^' 
setts («). There the plaintiff's and the defendant's dogs ''"Si), 
were fighting: the defendant was beating them in order 
to separate them, and the plaintiff looking on. "The 
defendant retreated backwords from Iwfore the dogs, 
striking them as he retreated; and as he approached the 

(m) The pl«inHfl'» proper 
remedy would have been against 
tlie consignor who despatched the 
eKploiivo "ithout intcjrmin|{ tho 
carriers of its nature. See Zf/fiU 
V. ffonjro Dai (1875) Indian Law 

Hep. 1 All. fiO, and cp. B«m- 
field V. nooh' and Shtffield 
'I'mitpnrt Co. [1910] 2 K. B 91 
79 L. J. K. B. 107Q, C. A. 
(") 6 Cu«h. 292 (1850). 


pkintiT, wii 

til his buck towards him, in ruising his sti' k 

I ordu 

■ike the dogs, he uci-idenully 

ovci" his shoulder i 
hit the plaintiff in the oyo, inllicling upon him ii sovoro 
injury." The action wiis trespass for assault and battery . 
It was held that the act of the defendant in itself 'was a 
lawful and proper act which he miglit do by proper and 
safe means"; and that if "in doing this act, using due 
care and all proper precuutions neoessary to the exigencicn 
of the case to avoid hurt to others, in raising his stick for 
that purpose, he uceidentally liit the phiintifl in the eye 
and wounded him, tliis was the result of pure accident, 
or was involuntary and unavoidable (o), and therefore the 
action would not lie." All that could be required of tlie 
defendant was "the exercise of due care adapted to the 
■ exigency of the case." The rule in its general form was 
thus expressed: " If, in the prosecution of a lawful act, a 
casualty purely accidental arises, no action can bo sup- 
ported for an injury arising tbf-refrom. " These authorities 
appear to have been uniformly followed in .\merica tor a 
considerable time. 

tdes: oasca 
of trespaM 
and shoot- 

Wo may now see what the English authorities amount 
to. They have certainly boon supposed to show that 
inevitable accident is no excuse when the immediate result 
of an act is complained of. Erskine said more than a 
century ago in his argument in the celebrated case of Tlir 
Dean of St. Asaph (p) (and he said it by way of a familiar 
illustration of tlie difterenco between criminal and civil 
liability) that " if a man rising in his sleep walks into a 
china shop and breaks everything about him, his beins 

(„) The couati/tirnop was in- 
voluntary or rattier unintended, 
thnui^h tlie act itse'f was volun- 
tary; aiid it was a!so una\oidal>le, 

i.e., not preventable by reason- 
able dili^enee. 

(p) 21 St. Tr. 1022 (*.D. 1783). 


ho !.«« broken." i„ ,T '" "" ""'"" ^"^ " 

"" -ro« at bu.t. ,„„ ,,„„, J; ;; - -Jvo„t,.e, „, b_, 
'""" '"■ ''"t or ,„„i,ne,l „„,, l„ '' T'"- '"" ''^ " 

-'k'-n." in onol »,.,„„ ;,, , " " ' "^ '"■"/"-n'lod. For 


'hougl' o« ,),e other hand shoot in^L' ^"^^ ^ '""^ 
'"■t (*)• \V« find .!,„ " "" ™"-''-l"'2.'r'Iou.s 

•n illustration a view of the ^ ? "' ""^ """'^ ?»"■ 

which .a. ,.e„ ir«:i :.xr - rrrv "■»' 

'?) *>. But wooy an indict- 

■n n Hon. VII. 28. Ho eito 
B«™„ not a, a wrilcr „, a„tl,„- 
rh»^avcrag„ fe^al mind „f hij 

«holly unconsciom of «hat ho is 
loinR, SCO p. 56, above 

l"d„ ,ag,lta„di vol alicoiui oior- 
!■.— T. 

"■" """"'' «•' lmiu,„,„di ,.a,a 
"l-qucm ooeidat, roddal cum 
eg., e„i„, 0,,, ,„; i„^,.^„™ 

Poocat, acionlor omondet." c M 
ill. add. an En^j.-.^ ,„^- 

"■'"""»■ "qui brcche „n- 
gsHde,, betaa (fofealde,.- Wo 
quote tto text a, oorrootod >,y 

i 606™°"°' ""'■ '■"■ ■'"'!''''' 
00 6 Edw. IV. 7 pi 18. 

VIl"27"°,'T "• "'■ '' '"«"■ 
'"• -i?, pi. 5, a oaso of treipa,» 

^ g«^» whiol, d™,, not really 

raijc the question. 



f«i;i(o fall on B.'b land, this docs not justify A. in ontw- 
ing on B.» land to carry them off. And by Choke C. .1 .. 
it is said, not that (as Brian's view would rer,uire A. 
must keep his thorns from falling on B.'s land at all 
events, but that " he ought to show that he could not do it 
in any othur way. or that he did all that was in his power 
to keep thcni out. ' «. Anothei- case usually cited is Weaver v . Ward > . Thi- 
"""' pkintift and the defendant were both members of a train- 
band exercising with powder, and the plaintiff was hurl 
by the accidental discharge of the defendant's piece. It 
is a verv odd case to quote for the doctrine of absolute 
liability, for what was there holdcn was that in trespass 
no man shall be excused, "except it may U- .judficd 
utterly without his fault;" and the defendant's plea was 
held bad because it only denied intention, and did not 
properly bring Jefore the Court the question whether the 
accident was inevitable. A later case (»y), which professes 
to follow Werner v. Ward, really departs from it in 
holding that " unavoidable necessitij " must be shown lo 
make a valid excuse. This in turn was apparently fol- 
lowed in the next century, but the rept rt is too mrogrc to 
be of any value (;). 

(X) Ilob. 134, A.D. 1016. 

(y) Hickeaou V. IVaUon, Sir 
T. Jones 205, a.d. 1682. Lam- 
bert V. «es.«y, T. Raym. 421, 
a WHO of M"o imprUonmo"' '■> 
the same period, cites the fore- 
goinu authoriticj, Bnd Roymond's 
opinion certainly assumes tl i 
view that inevitable accident is i o 
excuse even when the act is one 
ot lawful self-defence. Hut then 
Raymond's opinion is a dissent- 
ing one; «■ '•■ nom. Beitei/ v. 

OlUolt. T. Raym. 4C;. UiinK 
^iven in the formfr place alone 
and without explanation, it has 
apparently been sometimes taken 
for the judgment of the Court. 
At most, tlerefore. his illustra- 
tions are evidence of the notions 
current at the time. 

(s) rndencood v. lleit-soil, 1 
Strange 596, A.D. 1723 (defen- 
dant was uncocking a gun, plain- 
tiff looking on). It looks very 
like contributory negligence, or 


In the eoI..b„t^ .;: ^ ;':'" -' " »P-a' footing. 

'«» -lied upon (a, It T . ^l "''•' "'"^ "'"' '■">- - 
j-^dges intended .o'piVj; "'^ '» «'"" ox.ont tho 

'" bo an excuse. Bu B . H; "''f^-' «" "'« J"d»,- 

»»e-t3 ■• will e ,t Z 'r\'"'f'"» ■'"t •■".ovitabl! 
i« 'ho ease of thr „; ,1 ''°'".' "" "^"""'"t "^ «nun 

"- «™o line, thoSr " ^T"V'"' '"^'"'' - '^''''"? 


was that liability ;,, „. " ^'""^- B'^cbtonos th™i-v 
»e.ion on tho oal' ■. "^ij":; '" '^■'''''^"-'.ed f.o,„ „„ 

consequoncos. "'*" " 'i-nitod to such 

Then comes Zeawc v. B™, r/>l „ 
™«e, in which the defendant! ,'r'''"''''-^ '"''''ern z.,,„ 

PWirs cn„icle on ^^i^^tr^if^T ^ '"^ "•'■ 
dnving on the wrong side of thf 7 defendant was 
«»* .f due care, as e'rv Id ', "'"'' "' '^^=» " 

- a matter of co rTe The'dee "" """ *"" " J"-'" 
^o™ of action was trespltltr r' T ^"j """^^ 
have thought inevitable accident "a, """^ •^~ 
this was extra-judicial Twn "" ''•^«"''. hut 

r- ^^^-^.., wrcranrrrr™:'""^'"'^'^'-* 

-clincd, to the same opino ^ "tct' T.""" ""'" 

»- UCy. Isuch IS the authority 

"any rate voluntary ex„„.„„ to 

But ^ ,°" "■=''"'"««■« pare 
Bat the l.„ „, negLVon,,"^., 
'hen q„,ie undeveloped. 


J. 2 

%";■*!; f 2, 3 Wil,. 403. 
(*) 3 East S93 a D Isnii 



148 (lENtUUL taiCElTIONS. 

for the doctrine of strict liability (d) . Although far from 
docisivo, tho weight of o|,inion conveyed by these various 
utterances is certainly respoctable . 

CMC. On the other hand we have a series of cases which 

:i^o. appear oven more strongly to imply, if not to assert the 
'*'*'*• contrary doctrine. A. and B, both sot out in their 
vesseU to look tor an abandoned raft laden with goods. 
A. first gets hold of the raft, then B., and A.'s vessel 
is duniQgcd by tho wind and sea driving C.'s against it. 
On such facts the Court of Kings Bench held in 1770 
that A. could not maintain trespass, "being of opinion 
tliat the original act of the defendants was not unlaw- 
ful" (c) . Quite early in the century it had bwn held that 
if u man's horse runs away with him, and runs over 
another man, he is not even prima facie a trespasser, so 
that under tho old rules of pleading it was wrong to plead 
specially in justification r/). Here, however, it may be 
said there was no voluntary act at all on the defendant s 
part. In Wakeman v. Rohinmn, a modern running-down 
case(s), the Court conceded that "if the Occident 
happened entirely without default on the part of the 
defendant, or bhme imputable to him, the action does not 
lie"; thinking, however, that on the facts there was proof 

(rf) Jumca V. Caiupbell (1832) 
5 C. S: P. 372, liaa been cilcd in 
tliis connexion. But not only is 
it a Nisi Priua case with nothing 
particular to recommend it, but 
it is irrelevant. Tho facts there 
alleged were that A. in a quarrel 
with B. struck C. Nothing shows 
tliat A. would have been justiSed 
or excused in strikinR B. And if 
the blow he intended was not 
lawful, it was clearly no cxcnae 

that he struck the wrong man 
(p. 33, above, and sec R. v. 
I.„t;me,- (1888) 17 Q. B. D. 3.59, 
56 L. J. M. C. 135). 

(e) Jinvin V. Saundera, 2 Chitty 

(/) Gibhons V. Pepper, 1 Lord 
Baym. 38. 

(9) 1 Bing. 213, 25 R. B. 618 
(1823). The argument fjr the 
defendant accms to have been 
very well reasoned. 


"t nogligenoe, ,1,.,,. ,.,.fu«..| u ,„„. .,i„l, whi.l, „.„s ,.,k.„, 
for „„ tl„, ,.ou„.. „f .„„„,,,: ,. ,.„, ,,„„;"' 

■lonMon ag,..n «»» o„ ,1„. f,„.,„ „f „,,„.,,i„^ j, ''"'"" "" 
Lastly, .«.. hu,e Iwo c',,.i«i.,„„ ,,,,! „.i,l,in „u.. own ,„.„. ,/.,.„ 

.Mooii. Tho ho«„ ran uwtt».u„.| ,h,. p,.oom l,..i„„ 
.■.."alio to .,„p the,.,. ,„iU.,, „.e„, ,., b.,„ ,., L„„ ' J ^ 
h fa,lcd ,0 get H,o,.. eh-u,. round th.. .o,.,,.., and , : ' 
knocked down tho ,l„i„,iff. If an- driv,. l„d ,0^ 
ut o.„p,„d ,0 turn tl„. corner, thov would huve run s^rail 

'""ohed the „J„,ntiff at all. The .jury found there w„ n , 

"oghgencc. Here the driver was eertainlv aet.^g Z 1 

-as try,ng to turn the horse. And it wa. arg "d oltl 

authonty of the old ea«es and dicta, that a fr! nlsTl.' 

heen eojn™,ttod. The Court refused to take th*: i 

h«t,a.d notlung about inevitable accident in 

' EoLttc ,a,mpn,onee of mankind in carrying on the j/ ■ 

Qiuput-^^uV^ci, ^bi,, as reasonable care on t J 
l-^-^^tW««a«t*V0id ■■ (fr). Thus it seemsTo ll. 
made a question not only of the defendant being free fr„,n 
blame, but of the accident boin, such as is incidcntto 
ordinary- use of public roads. T„e san.e idea is e.n„ . , 
■n the judgment of the Exchequer Chan.ber in Ii„L,. , 



(A) Halt V. Fiarnlty, 3 Q B 
919, 12 L. J. Q. B. 22. ti.c ii„o 
between tl,i« and Gibbom v, 
Pfinper is rather fine. 

• 261, 44 r,. J. 

(') I., (i. io E 
Ex. 176 (1873). 
(*) Bramwell B. at p. 267 




iit4mUy V. 





FletchiT, where it is uvcn said that oil the casos in wbii'U 
inevitable accident has been held an excuse can bo ex- 
plained on the principle "that the circumstances were 
suih as to show that the plaintill had taken that risk upon 
himself" (J) ■ 

Finally, in Ht(giU#».-V<ucM{m), Donman J. came, 
on the English authorities alone, to the conclusion above 

I maintained, namely that, where iiegUgcuce is negatived, 
an action docs not lie for injury resulting by accident 
from another's lawful act. The reasons are not given in 
the most convincing manner, but the decision has boon 
accepted and is commonly referred to as removing any 
former doubts. On the whole wo shall bo. safe in saying 
that the principle of The miro-glycerine Cane and Brmm 
V. Kendall is now part of the common law in England as 
well as in America. Negligent acts are of course not free 
from liability; and in deciding whether a given act is 
negligOLt the act must bo considered with regard to its 
necessity, propriety, or conformity to common usage, in 
all the circumstances of the cose. All these elements 
count towards finfling as a fact whether a man acts with 
Jue care or not. It may be negligent to do risky things 
at all without good cause, as well as to do them carelessly, 
or to do some common thing so carelessly as to make 
needless risk. But this is no ground for laying down, as 
a rule of law, that there is a graduated scale of immunity 
or privilege according to the nature of the occasion. Such 

But Me per Lord HaUbury in 
Smith V. Baker [1881] A. 0. 
325, 337, 60 L. J. Q. B. 683. 

(») [1891J 1 Q. B. 86, 60 L. J. 
Q. B. 62. This was a shooting 
voM (a pellet glanced from a 

bough and wounded the plain- 
tiff's eye). A point might have 
been made for the plaintiff, but 
apparently waa not, on the 
" extra-hazardous " character of 


ii lulf i, not lo be found in any decision, and wmild !» i,ii' 
loo ,,.luborut« for |.m.tico (n). Whut i. hero ,„id seems in 
aceordanco with a roeent oi)inion of the .Stipreino Court of 
the United State.: " Occupations, however important, 
which cannot bo conducted without nece»,ar\ danjfcr to 
life, body or limb, should not be prose, uled at all without 
i.ll reasonable ijrocautions againut such dangers uUorded 
l>y science " (o). Acts done without such pre, aution, and 
causing damage, are actionable not os umvcnsed tr,>»- 
passoa, but on tho ground of culpable negligenc. All 
this inquiry may be thought to belong not so much to the 
head of exceptions from liability as to the fixing of the 
principles of liability in tho llrst instance. But such an 
inipiiry must in practice always present itp ' under the 
form of determining whether tho porticulor .cumstaneos 
exclude liability for an act or consequence which is at 
lirst sight wrongful. Tho same remark applies, tc some 
extent, to the class of cases which we take next in order. 


O.—Exercite of common Uighls. 
Wo have just left a topic not so much obsiure in itself Immunity 
as obscured by the indirect and vacillating treatment of J5 „'.!;' 
It in our authorities. That which we now take up is right"." 
well settled in principle, and the didicultics have been 
only in lixing tho limits of application. It is impossible 
to carry on tho common affairs of life without doing 
various things which are more or less likely to cause loss 
or inconvenience to others, or oven which obviously tend 
that way; and this in such a manner that their tendency 

f») Tlio l»te Mr. Ueven mado 
tlio attempt, NcgUgcaco in Law, 
i. 663 6S5. 

(o) Malltvr V. Ili'litoii (1894) 
1S6 U. S. 391, 399. 



cannot bu i-cuicilicd hy any means short of not acting at 
all. Competition in business is the most obvious example. 
If John and Peter are booksellers in the same street, eaeh 
of them must to some extent diminish the eustom anil 
profits of the other. So if they are shipowners employ- 
ing ships in the same trade, or brokers in the same 
markct. So if, instead of John and Peter, we take the 
three or four railway companies whosi' lines offer a choire 
of routes ffom London to the north. But it is needles* 
to pursue examples. The relation of profits to competi- 
tion is matter of common knowledge. To siiy tliat a 
man shall not seek profit in business at the expense ol' 
others is to say that he shall not do business at all. 
or that the whole constitution of society shall be altered. 
Short of a fundamental reconstruction of the common- 
wealth, the -la-w must assume that "free competition is 
\lsrtli.w.ore to society than it costs " (p). " Accordinii; t(> 
our law, eompctition, with all its drawbacks, not only 
between individuals, but between associations, and betwcLML 
them and individuals, is permissible, provided nobody s 
rights are infringed " (q). Like reasons apply to a mans 
use of his own land in the common way of husbandry, or 
otherwise for ordinary and lawful purposes. In short, life 
could not go on if we did not, as the price of our own free 
action, abide some measure of inconvenience from the 
equal freedom of our neighbours. In these matters 
veniam petimusqite damiisqiie ricissim. Hence the rule 
of law that the exercise of ordinary rights in an ordinary 
manner is no wrong even if it causes damage (r). It is 

(p) 0. W. Ilolmra J., Vesie- 
lah« V. Ounlnrr, 167 MaM. 92, 

(?) Lord Lindley in Quiim v. 
Lealhrm [1901] .\. C. 495, 589. 
70 L. J. P. C. 76. 

(r) A.-a. V. Tomtine (1880) 14 
Ch. Div. 68, 49 L. J. Ch. 377, i» 
a curious cate, but does not make 
any real exception to tliis. It 
ahows that (1) ttio Crown as 
owner of foreatiore has duties for 



chit'Uy in this t-luss of t-ascs that wo u\wX with tlit- iihniso 
or formuhi dmnnnm nine htiurUt : a form of words which. 
like nmny other Latin phrases and maxiiiiM. is too often 
thought to serve for an explanation, when in truth it is 
only un abrid<,Mnont or memoriu tcchnira of the thinj^s to 
be explained. It is also of doubtful elej^anee as a teeh- 
nieul phrase, though in general Latin literature miurta no 
doubt had a suflicieutly wide meaning (^). Li Kngli.:!h 
usage, howeviM'. it i^ of long standing (t), 

A chissiciil illustration of the rule is given l)y a case in The case 

the Year-Book of Henry IV., which has often been ^^^•'"■ 

cited in modern hooks, and which is still ncrfectlv "ood tJwnraar 

,, .^ , ™, . , ' - "^ School. 

authority (» . I he action was trespass bv two masttMN of 

the profe;ti(iii of the land, 
thou(f h not ciifuri'eahltr duties ; 
(2) tho?e dutie-*, wliero tlic Crown 
rights have beromp vested in a 
subject, are laid upon iind may be 
enforced against that subject. 

(«) Ulpian wrote (1). 9. 1, si 
(lufldrupes, 1, § 3): " Pouperiea 
est damnum sine iniuria facicntis 
datum, ncc enim potest animal 
iniuria fonisse, quod scnsu caret." 
This is in a very special context, 
and i.< far from warranting the 
use of "damnum cine iniuria " as 
a rommon formula. Iteing, how- 
ever, adopted in the InstitutK.^, 4, 
9, pr. (with the iinidiomatic 
variant " fniurinm fctissc "), it 
probably berame. through Azo, 
the origin of the phrase now cur- 
rent. In GaiuH 3. 211 (on the lex 
Aquilia) wo read " Iniuria autcm 
"ccidere intellegitur cuius doio 
aut culpa id aecidcrit, ncc ulla 
alia lege damnum quod sine 
iniuria datur rcprchcnditur." 

Thirj >ht)wn that "damnum sine 
iniuria daro " was a correct if not 
a common pliraso: thiugh it couM 
never have for (Jatua or Ulpian 
the wide meaning of '■ harm fof 
any kind] which give* no cause of 
acti;in." "Damnum sine iniuria" 
standing alone as a kind of (v^ni- 
I«mnd noun, according to the 
modern use, is hardly gotd Latin. 

(/) Bracton says, fo. 221 a: 
" Si ([uix in fundo proprio con- 
Htruat uli(|uo<t mulendinuni, ct 
te:'tani suam ct a^iorum vtcinorum 
Hubtrahat vieino. facit vicino 
damnum ct non iniuriam." 
" Damjiiium sine iniuria " occurs 
in 7 lid. 111. 65. pi. 67, "dam- 
num absque iniuria" in II Hen. 
IV. 47, pi. 21 (sec below). 

{If) nil. 11 Ilcn. IV. 47, pi. 21 
(.l.U. 1410-11). In the cinirse of 
argument the opinion is thrown 
out thac the education of children 
Ia a spiritual matter, and there- 
fore thtj rijjtil of uppuiutiiig a 





the Grammar School ot Gloucester against one who had 
set up a school iu the same town, whereby the plaintiffs, 
having boon wont to take forty pence a quarter for a 
child's schooling, now got only twelve pence. It was held 
that such an action could not bo maintained. " Oammim, 
said Hankford J., " may be iibsqiie intiina, as if I have a 
mill and my neighbour build another mill, whereby the 
profit of my mill is diminished, I sliall have no action 
against him, though it is damage to mo . . . but if a 
miller disturbs the water from ilowing to ray mill, or doth 
any nuisance of the like sort, I shall have such .action as 
the law gives." If the plaintiffs here had shown a 
franchise in themselves, such as that claimed by the 
Universities, it might have been otherwise. 

A cose very like that of the mills suggested by 
Hankford actually came before the Court of Common 
Pleas a generation later (a;), and Newton C.J. stated the 
law iu much tlio same terms. Even if tho owner of the 
ancient mill is entitled to sue those who of right ought to 
grind at his mill, and grind at the new one, ho has not 
any i-emody against the owner of the new mill. "He 
who hath a freehold in the vill may build a mill on his 
own ground, and this is wrong to no man." And the rule 
has ever since been treated as beyond question . Competi- 
tion is in itself no ground of action, whatever damage it 
may cause. A trader may complain of his rival only if a 

Hchoolmaatcr cannot be tried by a 
temporal court. The plaintiff 
tried to set up a quasi franchise 
as holding an ancient office in the 
gift of the Prior of Lantone, near 
Gloucester. This priory, called 
" Lanthonia secunda," was origi- 
nally a cell of Lanthony in llon- 

mouthahirc, but afterwards be- 
came the more important, and 
was formally made the principal 
house by a grant of Edward IV.: 
Dugd. Monast. vi. 127. 

(») 22 Hon. VI. 14, pi. 23 (A.D. 
1443j. The school cft=e ii cited. 


ilcfinite exclusive right, sucii as a patent right, or the 
right to a trade mark, is infringed, or if there is a wilful 
attempt to damage his business by injurious falsehood 
^"slander of title") or acts otherwise unlawful in them- 
selves. Underselling is not a wrong, though the seller 
may purposely sell some article at uuremunerative prices 
to attract custom for other articles (//); nor is it a wrong 
oven to offer advantages to customers who will deal with 
oneself to the exclusion of a rival (j). 

" To say that a man is to trade freely, hut that he is to 
stop short at any act which is calculated to harm other 
tradesmen, and which is designed to attract their business 
to his own shop, would be a strange and impossible 
counsel of perfection " («). " To di'aw a line between fair 
:. enrnpntitiott^Jatocon what is reasonable and 
passes the .ptiwcr of the Courts. Competi- 
tion exists where two or more persons seek to possess or 
to enjoy the same thing; it follows that the success of 
one must be the failure of another, and no principle of 
law enables us to interfere with or to moderate that 
success or that failure so long as it is due to mere competi- 
tion "(i). T)|oro ;. "nn v.^t,-,, ^tft, imposcd by law on 
competition by one trader with another with the &ale 
ohjent nf hrnr'litiiig .J)iai3£lf " ;>) . But this must be taken 
subject to the principle that uumpctitiuu must bo fair. in 
t h l i « R n S i . ' ■of.ili.'ing open . A man may not benefit himself 
, at the e.\j)cnse of another and rival triuler by passing off 
1 his goods or business as being that other's fd). 


Cy) Aiello V. Woideij [1898] 1 
Ch. 274, 67 L. J. Cli. 172. 

McOrcsor (188B-91) 23 Q. B. 
Div. 598, afflrmcd in H. L. 
11892] A. C. 25. 

at p. tilo. 

(6) Fry L. J., ibid. «t pp. 625, 

(p) I^rd IlanneD, s. o. in H. L. 
[1892] A. ('. at p. 59. 

((J) \Vc alia'.l return to ttii^ later 

(o) Bowen L. J., 23 (J. B. Div. ondor tho licad of Deceit. A 



in a moti'B 
own land. 




Anotiici- group uf uuthoritios of the same clos^ is lliat 
which establishes "' thut the disturbance or removal of tb 
Boil iu a mun's own land, though it is the means (b.\ 
process of natural percolation) of drying up his neigli- 
bour's spring or well, does not constitute the invasion ol ii 
legal right, und will not sustain an action- And, further. 
that it makes no difference whether the damage ai'ise b_\ 
the water percolating awuy, so that it ccast^s to How aloii^ 
channels through which it previously found its way to tin- 
spring or well; or whether, ha\ing found its wuy to the 
spring or well, it ceases to be retained there" ;^e). Thi- 
leading cuses are A cion v. Blundell (/) and Ch memore \ . 
Richards {(j). In the former it was expressly laid down a-- 
the governing principle "that the person who owns tin 
surface may dig therein, and apply all that is there fouiul 
to his own purposes, at his free will and pleasure, and thai 
if in the exercise of such right he intercepts or drains oil 
,the water collected from underground springs in hi> 
neighbour's well, this inconvenience to iiis neighbour fall- 
within the description of damnum absque iniuria which 
cannot become the groun'd of an action." In this case tin- 
defendant had sunk a deep pit on his own land for 
mining purposes, and kept it dry by pumping in the usuiii 
way, with the result of drying up a well which belonged 
to the plaintiff and was used by him to supply his cotton 
mill. Chasemorew Richards carried the ruloastep f'Ttlicr 
in two directions. It settled tliat it makes no difforoncc 
, if the well or watercourse whoso supply is cut off ot 
diminished is ancient, and also (notwithstanding ''onsidir- 

reecnt leading authority in Itrtf- 
daicay v. Btmkam [1896] A. C. 
199, 65 L. J. Q. n. 381. 

(e) Per Cur. BitUiicorkiiih 
Minhtg Co. v. Hnnhnti- i^Hn) 
L. R. 6 P. C. at p. 61, 43 L. J. 

l». C. 19. 

(/) 12 M. 6i W. 324, 13 
L. J. Ex. 289, 67 R. R. 361 

(i?) 7 H. L. C. 349, 29 L. J. 
Ex. 81 (1869); 115 R. R. 187. 

USE OF OKb's own LAND. 


■Mc doubt oxpre8sod by Lord Wonslejdalc) that it 
nmtter» not the operations curried on by the 
owner of tlie surface are or are not for any purpose' con- 
nected with the use of the land itself. The defendants 
in the cause were virtually the Local liour.l of Ilealtli of 
< ."vdon, who had sunk a deep well o,> their own laud to 
obla.n u water supply for the town. The making of this 
vvcU, and the of great <,uuntitics of water from it 
i".' the use of the town, intereepte.1 ,vater that had 
i.)rn,erly found its way into the river Waudle bv under- 
L-round channels, and the supply <,f water (o the plaintill's 
lucient nnll, situated on that riv,.r, wa. diminished. Her,, 
'ho defendants, though using th,.ir land in „n ordinary 
way, were not using it for an ordinary purpose. But 
- bo House of Lords refused to make any distinction on 
t bat score, and held the doctrine of Acton v. BlumMl 
■PpLcablc (A). The right claimed by the plaintiff was 
•leclarcd to be too large and indefinite to have any 
loundation m hw. No reasonable limits could be set to 
Its exercise, and it could not be reconciled with the natural 
:M,d ordinary rights of landowners. More lately the 
House of Lords has decided that it doe, not matter with 
« motive or intention a landlord exercises the right in 
lUestion. An aggrieved neighbour will not bett^'r h?s ease 
•■<y uierring th'it tho right wasexereised - mali,.iously • /) 

(/') Cp., a.^ to tlie di^tinc-tion 
' etween the " natural iner " of 

and and tho maintenance of arti- 
:i'ial works, nvrdmnii v. ,V. E. 
U. Co. (1878) 3 C. P. Div. ai 
>■• 174,47 L. ,1. r. P. 308: and 
further as to the limitj of '■ natu- 
ral user," Rnlhrd v. TmiiJiiimi, 

1885) 29 Ch. Div. US, 34 L. J. 
' 'h. 454. Water flowine in a de- 
;;ned underground channel whieh 

>» not known, and can bo known 
only by excavation, is not differ- 
ent for this purpose from wafer 
pereolaliny without any channel: 
Hmllord Corporation v. Frrmiid 
\im] 2 Oh. 655, 71 L. .7. Ch 

/) Manor of Bradford v 
mclle, [1895] X. C. 087 64 
r.. .T. Ch. 739. 



Tho law is beliovod to bo un Icretood to the samo effect 
in the United States. 
•fh-T There are many other ways in which a man may use 

a?K' his own property to the prejudice of his neighbour, and 
yet no action lies. I have no remedy against «. neigh- 
bour who opens a new window so as to overlook my 
garden; on the other hand, ho has none against me if. 
at any time before ho has gained o proscriptivo right to 
the light, I build a wall or put up a screen so as to shut 
out his view from that window. But the principle in 
question is not confined to tho use in property. It 
extends to every exercise of lawful discretion in a man's 
own affairs. A tradesman may depend in great measure 
Jjf*^ *<liMton one large customer. This person, for some cause of 
^^» J. dissotisfaction, good or bad, or without any assignable 


„ cause at all, suddenly withdraws his custom. His con- 
■■^■'■^iact may be unreasonable and ill-conditioned, and the 
manifest cause of great loss to the tradesmiui. Yet no 
legal wrong is done. The law is the same if several cus- 
1 tomers do the like simultaneously, or even (it is submitted 
'es tho better opinion) by agreement among themselves. 
And such matters could not be otherwise ordered. It is 
more tolerable that some tradesmen should suffer from tho 
caprice of custc -ners thon that the kw should dictate to 
customers what reasons arc or are not sufficient for ceasing 
to deal with a tradesman. So an employer entitled to 
dismiss a workman at a week's or a day's notice, or a 
workman entitled to leave on notice, has only to give the 
proper amount of notice; his reasons and motives are im- 
material. Choosing whon, where, or with whom one will 
jwork is as much a matter of common right (subject to any 
'binding contract) as the choice of an occupation itself (fc)- 
(i) Alla,ji,~Elixd [1898] A. t . 1, see per Lord Herachell, at p. 138, 
BTL. J-Q. B. 119. 


(And, since "a person', liberty or right to deal with 
hor,„ nugatory, unless they are at liberty to deal with 
h.m .f tl>ey choose to do so" (I), it follows that coercing 
.mans workmen or eustome.. not to work for or deal 
» th h.m a« distinct from refusing to deal with him onc- 
^If) .s not an exercise of one's own right, but a violation 
bf h.s, and actionable if wilfully done to his damage. 
Such a thing IS more likely to be done, and likely to be 
more injurious if done, by soveral per,ons tlian bv one but 
onpnnci,>le it would soem immaterial whether th-reis one 
Zir °" '"™'- '''' ^""" "»™ '" -"■™ '0 this 

^me of the Indian Mutiny, and was taken up to the PT"' 
Pmy Council. Bajondrc. Dutt an.l others, th'o plaii ! """• 
iffs below, were the owaers of the V„der.riter, a tug 

wth English troops arrived at the time when they wore 
nost urgently needed. For towing up this sh^ the 
aptain of the tug asked an extraordinary price. Failing 
o agree with him, and thinking his demand exto" 
-ate. Captain Rogers, the Superintendent of Mart 
(^vho wa. do en ant in the suit), issued a general or 1 
to omeers of the Government pilot service that the 
Vnderur>ta- .-as not to be allowed to take in tow „ y 
essel in their charge. Thus the owners not oiilv a led 
o make a profit of the necossitios of the Govenime^^ f 
In la but lost the ordinary gains of their businoss .s f 
as they were derived from towing ships i„ the charge o 

that these facts gave a cause, of action against Captain 

^ m L„,d Lindl., ta etta.v..Z^„, [1901] A. 0. 495, 534, TC ,,. .T. 





mftlice not 
ia these 

Rogers, but the Judicial Cpmmittcc rcvcrscil I ho dcciMon 
on appeal (m). The plaintiffs had not boon prejudiced in 
any definite legal right. No one was bound to employ 
their tug, any more than they were bound to take a fixed 
sum for its services. It the Government of India, rightly 
or wrongly, thought the terms unreasonable, they might 
decline to deal with the plaintiffs both on the present 
and on other occasions, and restrain public servants from 
dealing with them. 

" The Government certainly, as any other master, may 
lawfully restrict its own servants as to those whom they 
shall employ under them, or co-operate with in porforming 
the services for the duo performance of which I hey are 
taken into its service. Supposing it had been believed 
that the Undeniriter was an ill-found vessel, or in any 
way unlit for the service, might not the pilots have been 
lawfully forbidden to employ her until these objections 
were removed? Would it not indeed have been the dulv 
of the Government to do so? And is it not equally 
lawful and right when it is honestly believed tliat her 
owners will only render their services on exorbitant 
terms ?"(»)■ 

In this kst cise the harm suffered iiy the i)laintiff in 
the Court below was not only the natural, but appucntly 
the intended consequence of the act complained of. The 
defendant however acted from no reason of private 
hostility, but in the interest (real or supposed) of the 
public service. Not that even averment and proof of 
malice, in the sense that the act complained of was done 
with the sole or chief intention of causing harm to the 
pUintiff as a private enemy, could make any difference 

(»0 ]io3cri_v._JiaismiimJlt't*< 
8 Moo. I. A. 103. 

(n) 8 Moo. I. A. at p. 134. 


in suoh a oaae. " >J" "" "' rn-rtr which would be 
legsUldueJn tt proper motive can become Ulogal booauae 
it i, firompted by.a motivfi_whioh is improper or even 
maMau»"(o). And it is generally true that "an^t 
whist. dooa..not,auioiuU. to a legal injury uaunot be 
aeHonabk because it jVaona with a bad intent " (p). 

As regards the u,o of property, the ijomun lawyers Ron»u 
held that 'animus vicino nocendi" did or might make S^. 
a difference. In u passage cited and to some extent roUed ""'J"'"" 
on (in the scantiness, at that time, of native authority) in 
Acton V. Blimdell, we read: " Denique Marwllus scribit, 
cum eo qui in suofodiens vicini fontcm avertit, nihil posso 
agi, neo do dolo actionem: et sane non debet habere, si 
non animo vicino nocendi, sed suum agruni mdiorem 
faeiendi id fecit" (g). And this view was .-upposcd to 
bo followed by recognized authorities in the law of 
Scotknd, who s„y that an owner using liis own laud 
must act 'not in mere spite or malice, in aemulationetn 
VKtm"(r). But it is now explained that this refers 
only to the limited class of oases where a landowner 
can as woU do the thing he wants to do, such as burnin- 
limestone, without nuisance to his neighbour, .md yd 
wantonly or recklessly does it at a place when- it , „u*s 
annoyance («). It seems then that in Scotland. „., in 
England, abuse of an owners common rights u,„v bo 

(o) Lord Watioii, Hagor of 
Bradiard v. Pu-M.. [1895] A. C. 
387, 598 To tho name effect 
Lord MaoDnghtcn at p. goi. 

(p) Sttrvpnaon v. Newnhtm 
(18S8) 13 C, B. 285, 297, 22 I, J 
C. P. no, 93 B. B. «33; ap- 
pro»ed per Lord HerKhell in 
- V i m . 1 VI o a l [1898] A. C. I, 
124, 67 L. J. Q. a. 119. 

P. T. 

(?) D. iV, 3, dc aqua, 1 S 12 
(Ulpian). ■■ ' ■ S 

(r) Bell's Principle-s »ti6 (re- 
ferred to by Lord Wemleydalo in 
Ckniemort v. Itichnntt, ,up,„ 
p. 157. 

(•) Lord WatnoD in Mayor of 
Sradford v. Picklea, note (o) 


actionnbk' u a naiMmoe, but inconvfiiicnci> not aiiiountiii^r 
to nuisance cannot be made to give a riffht of antion by 
any allegation of ovil motive. 

C»" o* Again our law does not in general rocognizi' any cxilu- 

nMne.! give right to the uacof a name, pernonal or local. I may 
UBO a nuuie simiUr to that which my neighbour u»c»- 
and that whether I inherited or found it. or have nsoumed 
it of my own motion-«o long a» I do not use it to |>a.w 
off my warcB or business ns being his, which i» quito 
another matter. The fact that inoonveniene:- arises from 
the similarity will not of itself constitute a legal 
injury (<). and allegations of pecuniary damage will not 
add any legal effect. "You must have in our law injury 
as well US damage" (u). 

10.— Leave and Licence: Volenti non fit iniuria. 
ijonMitop Harm suffered by consent is, within limits to 1).- 
SS^if mentioned, not a cause of civil action. Thf same i« 
O^reand true where it is met with under conditions raunitostin); 
Uomce). acceptance, on the part of the person suffering it, of 
the risk of that kind of harm. The maxim by which 
the rule is commonly brought to mind is "Volenti noii 

(t) See Surf/ett v. Burtfen* 
(1833) 3 D. M. G. 896, 22 L. J. 
Ch. 675, 98 R. B. 350, » olassical 
cue; B" Boulan v. i)» Bmilag 
(1869) L. B. 2 P. C. 430, 38 
L. J. P. ('. 35; Da]i v. Brotiu- 
rign (1878) 10 Ch. Div. 294, 48 
L. J. Cli. 173; Street v. Vnitm 
Bank, if. (188.5) 30 Ch. D. 156, 
53 L. J. Ch. 31. Cp. Mo„t- 

riomctil V. Thtnninxm \ 1S'*1 1 
A. C. 217, 60 L. J. Ch. 757. ami 
dUt. Piuel't ca. [18981 1 Ch. 1751. 
67 L. J. Ch. 41, where a iiaiin- 
was a-wumed for a fraudulent 
purpose. .Vs to titles of honour. 
Barl Coirleij v. Comiteu Citwliii 
[1901] A. C. 450, 70 L. .1. P. 83. 
(m) Jessel M. H., 10 Ch. Div. 


K ^..1. phra« for the d..fc„co rai^-d i„ »,,, „,... „f e J 
tho one h«„d. howovor. rolrnti „,.„ fli i„u,ru, i. „„, 

-«.. ly ,ru.. 0„ tl th..r h,.„d, noi.hor ,h. L«ei„ „„r 

n. t„Kl.,l, f„„,„.u provid.* in tornm for .'.o «tato of 
•hmgH w. which ,hero i« „„, Kp..,ifl. „.ill or as, .„t to .u(I,.r 

v".uW b. a wronff. b,.t only ,.o„d.,.t ,ho,vi„,f th„t. for cm, 

.™.on or another, ho i, .™t™t to abido the chance of 

Jl). Some learned perHon- «ould make th.B a distinct 

(f.-..u„d of cxc.«o under the name „f ■■ a.,un.ptio„ of risk. • 

The ca«, of e.xpre«, consent i„ .on.paratively rare in o„r ^„^ 
hookB, except in the form of a licen^, to enter upon l,.„j '^^ 
I ■« indeed .n thi, kst connexion that we most often hear 
of oavo and heence," and the authorities mostly turn on 
..ue,t.o„, of tho kind and extent of pern,i.ion to Z 
inferred from particuhr lan-uaRe or aets (r). 

Force to tho per.on is rendered lawful by consent in i- ■. . 
-uch matters as surgical operations. The fact is ZlZ --" 
™ough; indeed authorities are silent or nearly so, beeau*- 
.He common and obvious. Taking out a man's tooth 
without h^tonscnt would 1« an aggravated assault and 
b..«ery. With consent it is hwfully done every day. I..L-. ^jsa,, 
the case of a person under the age of discretion, th.^^^M^ 
[.•onsent of that person's parent or guardian is generallv ^ W^^ 
n-cessary and sufficient (a). But consent alone is no, 

<^> As to ilio soiircB of thii 
"iM'm oud its history in early 
Enp-Iijh aodioritlos «eo T. Bmen 
in Joi -n. Bo:: Comp. Ltgisl. for 
1»07, ,,. IS5. 

()) Unless wo said that le«„g 
points to spciiac consent to an 
aet, Hence to jfcnonU assent to 


the consequences of acts con- 
sented to: but such a distinction 
seomft too fanciful. 

{=) See Addison on Torts 
p. 312, 8th od. 

(") Cp. Stephen, Digest of tiK' 
Criminal, art. 204. 


pnongh to jurtify what U ou the face of it bodily harm. 
jThere muat be lomo kind of juit cauw, ai the euro or 
'extirpation of diieaao in the cw» of nurgery. Wilful hurt 
ia not exeuaed by conaent or asaent if it baa no roa«on»blc 
object. ThuB if a man liconcoa another to boat him, not 
only dooa this not prevent the aasault from bi>in(r a puniah- 
able oBenco, but the hotter opinion ia that it dooa not 
deprive the party beaten of hia right of action. On thi« 
principle priio-fighta an.! the like "are unlawful oven 
when entered into by agre. nent and without anger or 
mutual ill-will" (ft). "Wh. never two pcraon. go out 
to strike each other, and do ao, each i» guilty of an 
assault" (c). The reason is said to be that such acts arc 
against the peace, or tend to breaches of the peace. But 
inasmuch as even the slightest direct application of force, 
if not justified, was in the hnguagc of pleading rl e.t 
armis and contra pof-em, something more than usual must 
be meant by this expression. The distinction seems lo be 
that agreement will not justify the wilful causing or 
endeavouring to cause appreciabk bodily harm for the 
mere pleasure of the parties or others. Boxing with 
properly padded gloves ia lawful, because in the usual 
course of tbingh harmless. Fighting with the barn list is 
not. Football is a lawful pastime, though many kicks are 
^iven and taken in it; a kicking match is not. ' .\« 
to playing at foils, I cannot say, nor was it ever said that 
I know of, that it is not Uwful tor a gentleman to 
learn the use of the small sword; and yet that cannot 

(ft) COMtiionwtaith v. CoUberg 
(1876) 119 Maaa. 350, and 20 Am. 
Rep. 328, whpre authoritie* arc 
collgcted. See also Beg. v. Cooey 
(1»82) 8 Q. B. I). 5S4, 538, 546, 
.^49. 567, and next page. 

(ff> roloridge .1. in Rug. v. 

lewit (!S44) 1 C. t K. at p. 421, 
cp. Bultcp N. P. 16. The pamagc 
there ai..l elaewhere eited from 
Comberbach, apart from the slen- 
der authority of t;.iit reporter, ia 
only a dictum. Buller'a own 
authority ia really better. 

uiirni or lawful lvmhent. 

U. learni^ without ptmman with foils" (rf). Fonuing 

..nKle.tiok. or playing with bluut .„bre. in the .ocu.ton.ed 

munner. i. lawful. bocu«. tho pl.j.,r, mean no hurt to 

one another, and Uke .u.h ord.r by tho u«, of .n«.k, 

and pud. that no hurt worth .poakinfr of is likolv A 

duel with .harp .word, after th. manner of o'crmau 

.tudent. 1. not Uwful, though th,™ should bo no pergonal 

enmuy between the men, and though the condition, bo 

.uoh a. to exclude dangor to life or limb. Here it cannot 

be «.d that -bodily harn, wa. not tho motive on either 

»>de («). It Mem. to bo what i. caUcd a .juoation of 

mixed hiw and fact ^. hethcr a particular action or oontct 

involve, .uoh intention to do real hurt that consent or 

>>»om wiU not juatify it (/) . Negl<.ct of u.ual precaution. 

I m any pastime known to involve danger would be evidence 

of wrongful intention, but not conclusive evidence. 

Thi.quo.tion was incideiitaUy con,ide.ed by wveral of «'».. 
the judge, in %i^v,£su,fy (,,), „ h„a> tho majority of the ""'*■ 
Court held that mere voluntary presence at an unlavful 
light 1. not necewarily punishable as taking part in an 
assault, but there was no difference of opinion as to ,. 
prize-fight being unlawful, or all persons actually aiding 
and abetting therein being guilty of assault, notwith- 
standing that tho principal, fight b> mutual consent 


(rf) FtMtcr'rf Crown Law, 260. 

(■«) Foater, ;. c. 
/) Cp. Pulton, Do Pure JUgU, 
17 b. It might bo a nice point 
"helher the cM English back- 
"•■ording (leo "l„„ Brown") 
«•»« lawful OP not. And quxre 
of the old rules of Rugby fool- 
Wl, which allowed deliberate 
lucking in some ciroumstoQcei. 
Vmrc, aUo. whether one monk 

might hare lawfully licensed 
another to btat him by way of 
npiritual discipliuc. But anyhow 
he could not have sued, being 
civilly dead by his entering into 

(t) (1882) 8 Q. B. D. 534, 31 
L. J. M. C. 66. For fuller 
colleetion and consideration of 
Ruthorillcs, cp. ilr. Edward 
^fanson*s note in L. Q. B. vi. Ho. 


The Court had not, of maiae, to decide anything as to 
eivil liability, but some imssagcs in the iudgments uie 
material. Cave J. said: " The true view is, I think, that 
ta blow struck in anger, or which is likely or is intended to 
jdo corporal hurt, is an assault, but that a blow struck in 
(sport, and not likely jor intended to cause bodily harm, 
lis not an assault, and that, an assault being a breach of 
the peace and unlawful, the consent ot the person struck 
L immaterial. If this view is correct a blow struck in a 
prize-fight is clearly an assault; but playing with single- 
sticks or wrestling do not involve an assault; nor dws 
boxing with gloves in the ordinary way " (A) . Stephen .1 . 
said: " When one person is in<licti>d for inllicting fcr'oiiiil 
injury upon another, the consent of the person who sus- 
tttinsthe injury is no defence to the person who inHicts 
the injury, if the injury is of such a nature, or is inilicte<l 
under such oircumstanecs that its infliction is injurious to 
the public as well as to the person injured. . . . Incases 
where life and limb are exp<»'il to no serious danger in 
the common course of things. 1 think that consent is a 
defence to a charge of assault, even when considerable 
foree is used, aa for instance in cases ot wro-stling, single- 
slick, sparring with gloves, football, and the like; but in 
all cases the (juestion whether consent does or docs not 
lake from the application of foree to another its illegal 
cliaracter, is a ipiestion of di'grec depending upon circum- 
slances" (j). These opinions seem equally applicable lo 
the rule of civil responsibility (fe). 

A) 8 Q. B. 1). at p. 539. .V-t" 
tho limiU of iBwful lioxintr, see 
llf}. V. Oftaii (187S1 39 L. T. 

!i) 8 Q. U. D. at |i.o49. ('uni- 
I>are arts. 208, 208 ot tlic leaf ' 

r.uw." The Iniigua-^e of art. 'ies 
follows the authorities but I aui 
not Bure that it cxartly hits thi' 

(fc) Notwithalandiu)? the (ioulit 
r IIa,>UiuJ.,8 Q.U. 

xprcssed by 1 

judge's " nigest of the Criminal I), at pp 

653, 554. 



A licenue obtained by fraud is of no oHoct. This is Liocuoe 
too obvious on tiie general principles of the l.iw to need SJUi" *^ 
dwelling upon 7). 

Km. til 
iniuriii til 
tion of 

Trials of strength und skill in sueh pastimes as tho»e Eiteudcd 
ii1k)vo nicnlionod afford, when earried on within hiwful T,'"'"* 
liounds, the best illustration of the priniipli' by whidi 
llie maxim mlenti mm fit iniuria is enlarged t)eyond its 
literal moaning. A man cannot of harm ;n ithin 
I he limits we have mentioned) to the cliances of which he 
has exposed himself with knowledge and of his I'roc will. 
Thus in the case of two men fencing or playing at single- 
stick, riilrnll nun fit iniuria would be assigned by most 
lawyers as the governing rule, yet the words nmst be 
forced. It is not the will of one player that the other 
should hit him; his object is to be hit as seldom as 
jiossible. But he is content that the other shall hit him as 
.ouch as hy fair play he ean; and in that sense the strik- 
ing is not against his will. Therefore the "assault" of 
the school of arms is no assault in law. .Still less is there 
an actual eon.sent if the fact is an accident, not a necessary 
incident, of what is being done; as where in the course of 
a cricket match a player or spectator is struck hy the ball. 
1 suppose it has never occurred to any one that li'gal 
wrong is done by such un accident even to a spectator who 
IS taking no part in the game. So if two men are fencing, 
and one of the foils breaks, and the broki'ii end, being 
thrown off with some force, iiits a bystander, no wrong is 
<lnne to him. Such too is the case put in the Indian I'ennI 

' A rather curiijiis illustration and replication -eem to liavc 

may he found in IMviet v. Mar- amounted to a i-onimon law plea 

•li"ll (iSBI) III C. B. N. a. 697, of leave and Iiiimk- and joinder 

■II L. J. C. I>. m, l«s n, B. SSI, "of hsm. or p.-rli;.p, 

ivlu're the Ho-ealled e()uitalile plea ment, thereon. 

i new assign- 

of these 
ixsee to 


Code (w.; of a man who stands ueai- another cutting wood 
with a Imtchct, and is struck by the head flying off. It 
may be said that these examples are trivial. They arc so, 
and for that reason appropriate. Thoy show that the 
principle is constantly at work, and that we find little 
about it in our books just because it is unquestioned in 
common sense as well as in law . 

Many cases of this kind seem to fall not less naturally 
_ under the exception of inevitable accident. But there is, 

inevitable ,,,, conceive, this distinction, that where the plaintiff has 
voluntarily put himself in the way ot risk the defendant 
is not bound to disprove negligence. If I choose to stand 
near a man using an axe, he may be a good woodman 
or not; but I cannot (it is submitted) complain of an 
accident teeauso a more skilled woodman might have 
avoided it. A man dealing with explosives is bound, 
as regards liis neighbour's property, to diligence and 
more than diligence. But if I go and watch a firework- 
maker, for my own amusement, and the shop is blown 
up, it seems I shall have no cause of action, even if he 
was handling his materials unskilfully. This, or even 
more, is implied in the decision in Z?fttt->~-I4yile8(«), 
where it was held that one who trespassed in a wood, 
having notice that spring-guns were set there, and was 
shot by a spring-gun, could not recover. The maxim 
"volenti non fit iniuria" was expressly held applicable: 
"he voluntarily exposes himself to the mischief whicli 

(m) lUuBt. to ». 8t). On tlic 
point of uctim) consent, cf. 8B. 87 
and 88. 

(n) (1820) 3B.lL Aid. 304, 22 
R. R. 400; op. .-ind dist. the later 
eaae of Bin/ v. Ilolbrook U828) 
4 Bing. 628. 211 R. H. 657. The 
argument lliat ?iuce the defen- 

dant could not have judtiiied 
xhootintr a trespasser with his 
own hand, even after warning, he 
eould not justify sliooting him 
with a spring-gun, i* weighed ami 
found wanting, tliough perliaps it 
ought to liave prevailed. 


I.a. happened- („;.. The case gave ri«, to mueh public 
exeuemen, and led to an alteration of the law (p , bu 

- not been doubted in »ul«eque„t authoriticl tha „ 
.0 law as .t stood, and the facts a. they came before 
the Court, ,t was well decided. As the point of negli- 
gence wa. expressly raised by the pleadings, the decision 
.s an authority that ,f a ma« goes out of his way to a 
dangero,,,, actton or state of things, he n.ust take the 
nsk as he y, j,, .,„, ,,;, ^^^^^ ^^ ^, ^ 

regard t- the attempt made by respectable authorities, and 
nofeed aoove, to bring under this principle the he„d of 
excuse by reason of inevitable accident ;,) . 

fa man undertakes ,o work in a railway tunnd where 
ho knows that trains are constantly passing, he cannot 
compU-n of the railway company fornot takf^g meas r 

though he IS the servant not of the company but of the 
contractor,',-). The minority held that 'the railu.v 
eompany, as carrying on a dangerous business, were 
bound not to expose persons coming by invitation upon 
their property to any undue risk, and at aU events the 
Ibiuden of proof was on them to show that the risk was in 
fact undor..too,l „nd accepted by the plaintiff (s). - If I 

C") I'or Uujlcy .(. 3 J), i .vij 

"« 1>. 311, uiid llulpovil J at 

p. 3U. 
(>) lidin. Rov. x.i\v. 123, 410 

(reprinted in Sydnov Smiths 
works). Setting .pp:nt-Kuns,e^- 
Pept by niglit i„ „ d«elliin--l,„„,„ 
for tlio protoption thirruf, was 
made a criminal offence by 7 i a 
Oeo. IV. c. 18, now repealed and 
"Ubstantiilly re-enat-d^d ,24 ,v 2i 


\ kt. c. 93, ». 1, and e. 100, s. 31). 
(?) //W/nm V. Jlaliir (1875) 
r-K. lOEx. atp. 267; %/„„rf, 
V. FIclehrr (1866) I,. R 1 E, 
at p. 287. 

()■) llimdlei/ V. Met. Dut. U 
r». (1877) 2 E.V. Div. 384, 46 
L. J. Ex. 521; Mellisl, and 
Ilaguullay L.JJ. diaj. 

(■») Cp. TtQ„uit y. Qiarlr,-, 
muue (1887) 18 «. B. Div. 683,' 

'• S-i^ 


invito u man who lias no knowlcdgi' of the locality to 
walk along a dangcious iliff which is my property, I owe 
him a duty different to thiL which I owe to a man ,who 
has all his life hirdiiested on my rocks" t). 

But where a nrin goes on doing work under a risk 
which is known to him, and which does not depend on 
any one else's acts, or on the condition of the jilaco where 
the work is done, hut is incident to the work itself, he 
cannot be heard to say that his exposure of himself to 
such risk was not voluntary «)• 

mod their 
workmen ; 
Smith ■ 

Cmh The principle exprc^ssed by iiilenli turn. Jit iniuriit is 

^^^j«r. differen t frpm that, ijt contributory ucgligfiUCD (a-), as it is 
in itself indeiM^ndenl ot the contract of »u-vice or any 
other contract {//). It docs not follow that a man is 
negligent or imprudent because he chooses to encounter 
a risk which lu' knows and appreciates; but, if he does 
voluntarily run the risk, he cannot complain afterward8(;). 
At the same time, knowledge is not of itsidf conclusive. 
The maxim is inhnli -not Hcknti mm fit iniiwia; "the 
ipiestion whether in any particular ease a plaintiff was 
ntlcm or mknx is a (piestion of tact and not ot law " ■^ii). 
/,\ workman is not bound, for example, to throw up his 

5(i 1,. .1. U. H. •1111, iiiiil Lord 
Jlrrat'lipirrt juiitrtiiont ia Mfni- 
hn;i V. O. IV. II. r„. (I8S9) H 
App. t'a. 179. 1»0. 

lO Fry L. J. 1« I). «• I'iv- »' 
p. 701. Anil fee l"i.,i"'"* V. 
F,««rr (18o7) ID (i. II. I>. «47, 
87 L. .1. Q. B. 7. 

(/i) Vf inhrrfi V. fi'. It'. II. I'". 
note (»). T.,ord Bramwe'-l's extra- 
judii'ial rcmarltM raniiot be sup- 
l«)rted: aec yter T.„rd tli'rViu-lI, 
14 .\pp. pp. 192, 103; and 

.Su,,7/. V. Unti,. p. 172, below. 

X) liowen L. .1. in 7'A(Wi2«_v. 
liiuutojoi""" '18l'7-l 18 Q. li. 
Div. I)S5. 1194, r,97, 56 I.. .1. 
(J. 1!. 340. 

,,) 18 Q. «. Div. at p. 698. 
!i) Bowen 1,. J. 18 Q. B. Div. 
at p. 695. 

'.;) Ibid at p. 696; Lindle'j 
L. .1. in y"rm>iitth v. Franrr 
(1887) 19 Q. B. I). 647, 6.59, be- 
fore judffOfl of the C. A. sittinff {W 
a I'.ivisi ,nal Court. 


^omploymont ruthcr than go on working with appliance 
■which he knows or suspcrts to be Jungcrous; und (o.i- 
jtinuing to uso bhcIi u|>pliiincos if the employer oannot or 
iWill not give him better is not eonclusive to show that he 
■vohmtarily tikes the attendant risk [h). As between uii 
employer unil his own workmen, it is hmdly possible to 
separate tiie (luestion of knowledge and aceeptanec of 
a purtieulur risk from the question whether it was ii 
term in the eoutraot of serviee 'though it is seldom, if 
ever, an express term) that the workman should acccpl 
that risk. Since tlio Employers' Liability Act deprived 
the master, as we have already seen, of the defence of 
" eonimoii employment " in a eoiisiderablc number of 
ea««. the defence of roknti mm fit iniiirm has several 
times been resorted to, with the ,.(fcct of raising compli- 
cated discussion on tolerably .simple facts. By treating 
the ma.xiiii us if it were of literal authority ^which no 
maxim is), and then construing it largely, something very 
like the old doctrine of ■•common employment' might 
liave boen indirectly restoivd. For some time there was 
appreciable .langer of this result. But the tendency was 
eftecfually checked by thi. decision of the House of Lords 
in ftwtf , tt ., v lii dn •<■). lisxxpi where there is an obvious 
and necessary dang,.r in the work itself, it must be a 
question of I'aut iu eyinycase whether, there wa^ an 
»Kr»aicnt_oi-, at Buy rate. consent, to take the risk (d). 
" Where a person undertakes t,i .!o work which is intrin- 
'» at\\y ilangern u s . nimvjjJatauOing that reasonaMLIare 
bat^if^ik''n to r,.nd,.r it as little dangerous as possible 


6) YnriiwtftA V. f r/j tier, ]ast 
note; TJinuK'l r. lla„,l,/,id<, 
(1888) 20 Q. B. D. 359, 57 L. J. 
4. R. ,147: ,v„„7/, V. flrfr, 
11891] A. !-. 32.i, fiOL. J. Q. B 

l«)[1891] A.C. 325. 

I'rfJ W't" 'am» V. Ilirmtitffha,t, 
Bailer!/ "'.- MeM fo. \Um\ 2 
<J. B. 338, 315, 68 L. .T. Q. u. 
018, per UuiiuT L. .T. 



iie no doubt voluutmilj subjects himsdf to tbe risks 
nevitably aocompanying it, and cannot, if bo BuScre, bo 
lermitted to compUiin that a wrong h«» been done him, 
ven tbough tho cause fioii. ivbieb he suffers might g"e to 
ptbers a right of nctiou:" as in the case of works 
iunavoitliibly producing noxious fumes. Uut where '^arisk 
to the employed, which uiuy or may i\ot result in injury, 
has been created or enhanced by the ni'gligcncc of thr 
employer," there " the mere continuance in service, wiLh 
knowledge of the risk," does not "preclude the employed, 
if he suffer from such ncgligeuee, from ivcovering in 
respect of his employer's breath of duty '(<■). And it 
seems that (apart from contracts to take a class of risks) 
there must be consent to the particular act or operation 
which is hazardous, not a mere general assent interred 
from knowledge that risk of ii certain kind is possible (/) . 

tion whert' 
no negli- 

Cases of volenti nun fit iniiiria aic of course to be 
distinguished from cases of pure unuxperted accident, 
where thci-e is no proof of any negligence at all on the 
defendant's part (3) . It seems that Thomwt v . Quaitei- 
maine, though not so dealt with, was really a case of this 
latter kind (A) . 

In the construction of a jjolicy of insurance against 
death or injury by accident, an exception of harm 
"happening by exposure of the insured to ob. ions risk 

(•) Lord Hemhell [1891] A. C. 
•t pp. 360, 362. 

(/) Lord Halsbury [1891] A. C. 
at pp. 336— 338. 

(y) Walih V. n-Hleleij (1888) 
21 Q. B. Di>. .171, 57 L. J. Q. B. 

(A) Sec Lord MorrU'd rciiitirks 
in Smith v. Baker [1891] A. C. 

nt p. 369. In Smith v. Baker 
itBclt, an appeal from a County 
Court, thu point, not having been 
raised at tlie t'ial below, was not 
open on the appeal. It wa^ never- 
theleis extra-juJicially discussed, 
with considerable variety of 


of injury" includes accidents duo to a risk which would 
have been obvious to a person usiuj? common care and 
attention (t). 

We now see that the.wholo l„w of negligence assumos Dl.tin,.. 
thcirincifje of volenti non fit iniurianot to be applicable. Jj^'™" 
It was suggested in Holrm-x v. MatJKr(k) that, when ""T 
a competent driver is run „«av with by his horses ^.HS" 
and, in spite of „11 he can do, they run over a foot- °''°"''°- 
passenger, tlio foot-pussenger is disabled from suing, 
not simply because the driver has done no wrong, but 
because prople who walk along a road must take the 
ordinary risks of traffic. But, if this were so, why stop 
at misadventure without nogligenoe? It is common know- 
ledge thn( not all drivers are careful. , It is known, 
or capable of being known, that a certain percentage arJ 
not careful. 'No one (at all events, some years ago, 
before the admirable police regulations of later years) 
could have crossed London streets without knowing that 
there was a risk of being run over " [l). The actual risk 
to whieh a man crossing the street is exposed (apart from 
any ourelessness on his own part) is that of ruro mis- 
adventure, and also that of careless driving, the lathT 
element being probably tlie grater. If he toally took the 
jvvholc risk, a driver would not be liable to him for running 
over him by negligence: which is absurd. Are we to say, 
then, that he takes on himself the, one part of the risk and 
does nol take the other? A reason thus artificially limi(e<l 
18 no reason at all, but a mere fiction. It is simpler ,u.d 
better to say plainly that the driver's duty is to use proixr 
and reasonable care, and beyond that he is not answerable. 
The true view, we submit, is that the doctrine of voluntary 

(0 Corniih v. Accident Imur- 
"iict Co. (1889) 23 Q. B. Div 
l-M, SSL. J. (J B. 591. 

(*) L. B. 10 Ex. at p. 267. 
(I) Lord Ilalsbory [18911 A. C. 
at p. J3T. 



cx|)08um to risk hii» no uiiplication as bctwi'on parties on 
an oquul footing of right, of whom one docw not go out of 
.his way more tlian the other. A nian ia not bound at his 
Ipori! to fly from a risk from which it is another's duty to 
^)rotPct him, merely beeouse th:- risk is known (m). Much 
the some principle has in late years b?en applied, and its 
limits discussed, in the special branch of the law which 
deals with contributory nogligenee. This wi> shall have 
to consider in its place '»). 

Works of 

11.— HVA/t of NereHaUi/. 
A class of exceptions as to whioh there is not rauoli 
aulijority, but which certainly exists in every system of 
law. is jhat of acts done of necessity to avoid a gi-eatei^ 
harm, and on that ground justiticd. Pulling down houses 
to stop a fire (o), and casting goods overboard, or otherwise 
sacrificing property, to save a ship or the lives of those on 
board, are tho regular examples. The raariti :; law of 
general average assumes, as its very foundation, that the 

(III) .; »nV< r. Bi der [1891] 

A. C. 32.5, 60 L. J. Q. B. 683; 
■rhrmiell V. Ilalidiltide [ 1888) 20 
Q. B. D. 339, 57 L., I. «. B. 347. 

{;0 Seo Ore V. Mi'ti-'iiii'lHiiii 

B. Co. (1873) Ex. OK. 1/. R. 8 
Q. B. 161, 42 L. .1. Q. U. 105: 
Hnhioii V. .v. E. R. Cii. il87S) 
I,. R. 10 Q. B. at p. 274. 44 L. J. 
U. B. 112; and per ilramwell 
L. J. (not referring to ihcsc au- 
thorities, and taking a somcwliat 
different view). Lux v. Ciivporrt- 
iion of DtirUiiytim (1879) .'» Ex. 
D. at p. 35, 49 L. J. Ex. 105. 

(w) Dyer 3(1 4: as to burn- 
ing heather on another's land to 
stop the spread of heath fires. 

r..,,c V. Slintiie [1910 1 1 K. B. 
168, 79 L. .T. K. B. 281. N'eces- 
sity m'jst be sliown. not in the 
sense of " actual " neeessity a, 
judged after the event, liut ac- 
eording to the judgment of u 
reasonable man meeting immi- 
nent danger at the time: Coi/i 
v.S/i«ij.f (No. 2) I 1912 I 1 K. 11. 
496, f. .\., 80 L. J. K. B. 1008. 
Cp. the opinion of Best V. .1. in 
Drirei/ V. ll'liUe (1827) Moo. i, 
M. 56 (daraiige inevitably done to 
plaintitf'.s house in throwing down 
ehimneya ruined by fire, which 
were in danger of falling into 
the highway: a verdiel; for the 
defendants was aetjuicsccd in). 


destruction of property uiid.'r m,h coiulitiniiB of dnlig.r 
i» justifiublo (p). It is .said „l8„ that " in time of war on« 
shull justify entry on unotlior'» land to make a liulwurk in 
drfcnce of the king and the kingdom. ■ In these cnsos 
th.> apparent wrong "sounds for tile pnldie good " (Vj). 
There arealsoeiriunistanees in uhieh a man's property or 
person may hiive to hv dealt witli r'roniptly for his own 
»b\ious good, but his consent, or the (onsent of any one 
ha^ing hwful autliority over him, lannot he nbtainad in 
lime. Here it is evidently jusfilhible to ,h.. in a proper 
and reasonable mann-r, whiit leeds to b' done. It has 
ne\er been supposed to bo i>ven t.'ehnically a tr.>apas8 if I 
throw water on my neighbour's gooils to save them from 
lire, or seeing liis house on tiro, enter peairabiy on liis land 
to help in putting it out (r). Nor is il ,u, assault for the 
Hrst paescr-by to pick up a man rendered insensible by an 
accident, or for a eompoU'nt surgeon, if he perceives that 
;an operation ought forthwith to ho perfornu^d to save the 
iman's Jife, to perform it without waiting for him to 
recover consciousness and givi' liLs consent. Thrae works 
of charity and necessity must bv kwful as well as right. 
Our books have only slight and scattered hints on tlie 



;/>) Momr-, ra«.-. 12 Co. Rep. 
K3, la only just worth citing as an 
iilu-Htration that no ai-tion lies. 

(?) Klngsmill J, 21 Hrn. Vir. 
27, pi. 5; pp. Dvcr. «ii enprfi. 
Ill 8 Ed. IV. 23. pi. 41, it is 
>hoii|-ht doubtful wlipthcr the 
justification should he hy com- 
mon law or hy special custom. 
Sec p. 125, above. 

I') Good will without real 
necessity would not do; there 
must be danger of total loss, and, 
it is said, without remedy for the 
owner against any person, per 
Rede C. J. 21 Hen. VII. 28, 
pi, 5; but if this be Uw, it must 

be limited to remedies ai^ainst a 
trespasser, for it cannot bo a tres- 
pass or a lawful act to save a 
man's goods according as they are 
or are not insured. Cp. Y. B. 
12 Hen. VIII. 2, whore there is 
«<)me curious discussion on the 
theory of trespass generally. A 
mere volunteer may not force his 
way into a on fire already 
under the control of persons who 
are lawfully endeavouring to put 
down the lire, and are not mani- 
festly insufficient for that pur- 
pose: dart,; V. Tliamaa [ 1893] 
I «. B. 873 (judgment of 
Kennedy J.). 



«ubj««t, probably because no question has over been 
made («). The tost of justiflcstion seems tc be the actual 
presence of imminent danger and a reasonably apparent 
neoosoity of taking such action as was taken (<)■ 

It seems that on the same principle a stranger may 
Nustify interfering with the goods of a lately deceased 
jpcrson so far, but only so tar, as required for the pro- 
Wtion of the estate or for other purposes of immediate 
noeeaiity («). 


V2.— Private Defence. 
Self-defence (or rather private defence (x), for defence 
bf one's self is not the only case) is another ground of 
immunity woU known to tins law. To repel force by force 
is the common instinct of every creature tliat has means 
of defence. And when the original force is unlawful, 
this natural right or power of man is allowed, nay 
approved, by the law. Sudden and strong resistance to 
unrighteous attack is not merely a thing to be tolerated; 
in many cases it is a moral duty. Therefore it would bo 
a grave mistake to regard self-defence a» a necessary evil 
suffered by the law because of tho hurdncss of men's 
hearts. The right is a just and perfect one. It extends 
not only to the defence of a man's own person, but to tho 
defence of his property or possession. And what may be 
lawfully done for oneself in this regard may likewise be 
done for a wife or husband, a parent or child, a master or 
servant (j/). At the same time no right is to be abused or 

(a) Ct. the Indian FensI Code, 
R. 93, and the powers f^iven to the 
London I'ire Brigade b; 29 & 211 
Vict. c. 90, H. 12, which Becmt 
rather to aasume a pre-existing 
right at common law. 

(0 Cajig_y. Shirrrf ("o. 2), 

note (o) above. 

(11) See Kirt v. ffffgory (1876) 
I Ex. D. iS, 69. 

(x) This is the term adopted in 
tlie Indian Penal Code. 

(J/) BlaclcBtone iii. 3; and sec 
the opinion of all the justices of 



mudo th« clouk „f «.ro„s. oud thi. right i. „„o oMy 
abu««i. ri«, lu« ^.t, bound to it by the rule lh»t tli 
force omployod mu»t „ut bo out of proportion lo .bo 
apparent urgency of the .occasion. We .ay appa.-ent, for 
a man e<u,not be hold t„ form a prcci.o judgment under 
»uch condition.. The ,««„„ acting on the defensive i. 
entitled to u«.. „. „,uch force u. ho reasonably believe, to 
bo neoe..ary. Thus it i, not justifiable to use a .leodly 
weapon to ro,H.l a pu.h or a blow with the hand It U 
even .aid that u „.un attacked with a deadly wa,pon n.u.t 
retrea a. far a. he ...fely can befon. he is jusli.ied in 
defending lu„,>^.lf by like moon,. But thi. probablv 
upplie. (.0 fur a, it i.s the law) only to criminal liability (2) 
On the other hand, if a man prexent. a pi.tol at mv"hcad 
and tlireaten. to shoot me, peradvantum the pi.tol'is not 
oaded or i. not in working order, but I .hall do no wrong 
before the law by acting on the .opposition that it i, really 
kadod und capable of .hooting. ' Honest and reasonable 
bsliflf Jjiuniuediato danger ' i. enough (a). 

Case, have ari.en on the killing of animals in defence Kmingo, 
of one s property . Here, as elsewhere, the t03t i. whether S^"^ '» 
the party, act wa. .uch as ho might reasonablv, in the ^^7 
circumstances, think ncessary for the provention" of harm 
which he wa. not bound to suffer. Within our own tiue 
the subject was elaborately discussed in New Hamp,hir> 

1^ I)., 21 1U„. VII, 39, ],1. 50. 
There liaa been lomo doubt 
wheeher a miuter could justify on 
the ground of the defence of his 
-ervant. But the practice and 
the better opinion have always 
lioen otherwise. Before the Con- 
Huojt it was understood that a 
lord might fight in defence of his 
r.— T. 

men as well as thev in his. LI 
Alf. c. 42, § 5. 

(:) Sec Stephen, Digest of 
"^riminal Law, art. 200. Most of 
the authority on this .ubject is in 
the early treatises on Plon., of the 

!.'•) -v. 0. i .V. E. II. It. Co 
V. Jopc, (1891) H2 V. a. 18. 




mid nil or ue>rl> all the aullioritiw. Eogliih and 
American. rp\ i wod(fc). Homo of tlnw, such on Deane 
V. Clof/toH (,c), turn lew ou what jniount of forco i» 
reamnablo in itwlf than on the quoation whether a 
man is bound, as against the owners of animalc which 
come ou his land otherwise than as of right, to abstain 
from making the land dangeroun for them to omo on. 
And in this point of view it is inimateriQl whether a 
man keeps up a certain state of things on his own 
land for the purpose of defending his property or for anv 
other purpose which is not actimlly unlawful. 

.\» to inJHrioB received by an innocent third person 
ifrom an act done in self-defence, they must be dealt with 
ion tho same principle ns accidental linrni proceeding from 
any other net lawful in itself. It has to be considered, 
however, that u man repelling imminent danger cannot be 
expected to use as much cantos ho would if he had time to 
act dclilerately. 

Self-defence does nj)t, include the actiyc_u8si.iiiii t a 
diiun- 'disputed right against an attempt to obstruct its cxcmise. 
gjj^l,. I am not justified in shooting, or offering to shoot, one 
dtlomx. ^1,0 obstructs my right of way, though I may not be able 

AlM lU on 

(i) Mdrich V. WrijAf (1873) 
S3 N. II. 398, 16 .\m. Bcp. 339. 
Tlie decision was that the penalty 
of a Htatutc ordaininfT a close 
time for minks did not apply to a 
roan wlio shot on his own land, in 
the fiose season, minks which he 
reasonably thought were in pup- 
suit of his fjeese. Compare Ta;/- 
Itn- app. yfi'imnn resp. (1863) 4 
1). li S. S», 32 L. .T. M. C. 196. 

fc) (1817) 7 Taunt. 489, 18 
U.K. 588. the ease of dog-spear>, 
where the Court was equally 

divided; Jortlin v. Cnimu (1841) 
8 M * W. 782, 90 R. R. 9J9; 
whe. t the Court took the view of 
Oibbs C. .7. in the last case, on 
the ground that setting dog- 
spears was no^ in itself illegal. 
Nolire, liowcver. was pleaded. It 
is not malicious injury to pro- 
perty for a gamekeeper to shoot 
u dog in the honest belief that 
such action is necessary for the 
protection of his master's pro- 
perty: ililet V. lliilrlihifi- fl903J 
2 K. B. 714; 72 L. J. K. B. 775. 

DErrarcK ako kkcemitt. 
to p«« him other, i», and tho.-el, I am ju.tifloU in 

CI r™ '"' '*"'' "P'"'"" "">»' "» •»•' 0' fori 

Ju.t.fl«blo only for the purpo«. of .trict .eU-defcn™ " (rf) 
In.., bo ju.ffled i„ pushinjr pa... the ob^ruCor. but 
th,, , not an act of «.lf.def„„„<, at all; it i, th. pur.^ a„d 
">mplo pxeroisc of my ri(flit itnelf (e). 

Many intorestinK qucatiou-, in part not yet scttkd, m.v 

most pracfcal i„,e„„ to publi.. and not to prii: 
It must not bo a«u„„Kl, of oo„,.».. th^ whatov r i a 
-fficcnt jusf/ieation or exc„. in a criminal prol. ton 
« .11 equally guffioc in « civil action. 

Some of the dicta in tl.o well-known cajo of Seoll v i . . 
*/-pW /) ,0 th. length of sn,««tin, that a mt „ : ^I'-S^" 
■ns on ho spur of tho „,„„„„t unL "oompl.Ve ^5^ 

a- not bemg a voluntary agent, and is the«fo« „ot bound 

In hat case ,t is hard to teliov^ that Willis or Byal if 
1- had teen worth suin,- and had been sued, could hLvo 
-nocessfuUy made «uch „ defence. They "had a 

.■.*fh to protect themselv<« by removing the squiV but 
. ou d have tuken can-^-at any rate such ea'e a, , 
prncfcble under the .iroumstan^-'-to do it in such a 
manner as not to endamage others" (^). The Eoman 


Id) Dicey, Uw of thp Cuii- 
sdlation, 7tli cd. 1908, „ppj 
'■"''■ iv., at p. 493. which ,ce for 
lullor disciusion. 

(•) Dicey, op. elt. 495. 

(/) 2 W. Bl. 892. 

(.») BlackBtone J. in his din- 
sonting judgment, 2 W. Bl nt 
p. 89S. 



lawyers held that a man who throws a stone in scU- 
defenoo is not excused if the stone by misadvunture 
strikes a jjerson other than the assailant (A). Perhaps 
this is a harsh opinion, but it seems better, if the choice 
must be made, than holding that one may with impunity 
throw a lighted squib across a market-house full of people 
in order to save a staU of gingerbread. At all events a 
, man cannot justify doing for the protection of his own 
j property n deliberate act whoso evident tx^dcncy is to 
: cause, and which does cause, damage to the property of 
an innocent neighbour. Tiuis if flood water has conio on 
my hind by no fault of my own, this docs not entitle mo 
to let it off by means which in the natural order of thinijs 
cause it to Hciod an adjoining owner's land (j) . 

Harm suf- 
fered by 
a wroQg. 

\:\.— Plaintiff a wrong-doer. 
Language is to be met with in some books to the effect 
that a man cannot sue for any injury suffered by him at 
a time when ho is himself a wrong-doer. But there is no 
such general rule of law. If there were, one eonsoquence 
would be that an occupier of land (or even a fellow tres- 
passer) might beat or wound a trespasser without being 
liable to an action, whereas the right of using force to 
repel trespass to land is strictly limited; or if a man is 
ridin" or driving at an incautiously fast pace, anyb(xly 
might throw stones at him with impunity. In Bird v. 
Holbrook (A-) a trespasser who was wounded by a spring- 

ful in themselves which are dune 
by way of precaution af^ain^t nn 
impending common danger. 
(i) (182S) 4 Bing. 628, 29 

i)iv. 131, 53 L. .1. Q. B. 285, dis- K. li. 657. Cp. p. W8, above. 

tinguishing the case of acta law- Tlie cause of action ar an, and the 

(A) D. 9. 2. ad. 1. -Vquil. 45, 
g 4; aupra, p. 141. 

• B. Co. (1884) 13 Q. B. 


gun set witliout notice was hold ontitlod to muuitain his 
action. Similarly it is ru.; that ovon a trespasser niav 
have an acfon again.; an o<.,„,,;=r ,,ho has put a horse ho knows and ,,he -rospasx.,- ,oes not know to bo 
^vage ,n a field used, f i.f, k.,o>, bv mar,y persons 
as a short out (l). And generaiij, "a trespasser is liable 
to an action for the injury which he does: but ho do« not 
forfeit his right of action for an injury sustained" („,) 
OJoaioiot appear on the whole that a plaintiff is disablo,! 
tmausommng by rea*.n of being himself a w rong-d*T 
>»lii»-a)me,tt8kBJMUct.oi:.omiduct.-Qa.hi*.own part is 
"i mtM with I h r . h'lrm suffered bv him asjatUOic 
^m t^1,n.5lttt , !o n: and even then it is diffioult to And a 
c,',.se where it is necessary to assume any special rule of 
this kind. It would be no answer to an action for fcilli„„ 
a dog to show that the owner was liable to a penaltv for 
not having taken out a dog licence in due time ' If 
again, A. receives a letter containing defamatory state- 
ments concerning B„ and roads the letter aloud in the 
presence of several persons, he may be doing wrong to 
li. iSut this will not justify or excuse B. if he seizes 
and tears up the letter. A. is unlawfully possessed of 
ixi.losivos which he is carrying in his pocket. B., walking 
or running in a hurried and careless manner, jostles \ 
and so causes an explosion. Certainly A. cannot recover 
against B. for any hurt he takes by this, or can at mo^t 
recover nominal damages, as if he had received ■, 


trial took place, before the pass- 
ing of the Act which made the 
setting of spring-gnns unlawful. 
(0 £l)«i«si.«_ifaiter 1,19111 
.1. C, 10, 80 L. J. K. B. 138, 
aciording to a suggestion in 
Oniid Trunk Ky. vf Canada t. 
llmaeu \ln\] A. C, at p, 370, 80 
I- J. P. C. 117; but the ground 

on whiph that decision was ai- 
tually put was that the plaintiff 
was a licensee, as the same jud)f- 
mont of the Judicial Committee 
says on the same page. 

(m) Barnes v. IVard (1850) 9 
C. B. 392, 19 L. J. C. P. 195 
82 E, H. 37S. 


harmless push. But would it miike any difference if A.'s 
possession were lawful? Suppose there wore no statutory 
reguktion at all: still a man going about with sensitive 
explosives in his pocket would be exposing himself to im 
unusual risk obvious to him and not obvious to other 
people, and on the principles already discussed would have 
' no cause of action (n). And on the other hand it seems a 
strong thing to say that if another person does know of 
the special danger, ho does not become bound to toko 
answerable earc, even as regards one who has brouglit 
fiimsclf into a position of danger by awrongful act. Cases 
of this kind have sometimes been thought to belong to the 
head of contributory negligence. But this, it is sub- 
mitted, is an unwarrantable extension of the term, founded 
on a misapprehension of the true meaning and reasons of 
the doctrine; as if contributory negligence were a sort of 
positive wrong for which a man is to be punished. This, 
however, we shall have lu consider hereafter. On the 
whole it may be doubted whether a mere civil wrong- 
doing, such as trespass to land, ever has in itself the effect 
now under consideration. Almost every ease that can be 
put seems to fall just as well, if not better, under the 
principle that a plaintiff who ha.s voluntarily exposed 
h-mself to a known risk cannot recover, or the still broader 
rule that a defendant is liable only for those consequences 
of his acts which are, in the sense explained in a former 
chapter (o), natural and probable. 

Conflict o{ 



States in 




In America there has been a great question, upon 
which there have been many contradictory decisions, 
whether the violation of statutes against Sunday travellin? 

C«) See a nimilar case put by 
roUock C. B. in Degir v. Mifll. 

«. Co. (1867) 1 H. & N. 
p. 777, 108 E.K. at p. 819. 
(o) Pp. 34-^51, above. 


is in ifsolf „ b„.. to actions fo. injuHo. ro...;voJ in the 
ursc of sueh travelling through defoctivo condition of 
roads, noghgcnco of railway companies, and tho like I„ 
Massachnsotts (where tho law ha« .since been altered bv 
Statute), ,t was held that a plaintiff in s„ch oir.umstanc™ 
eonU not recover, although the accident might just as 
«ell have happened on a journey lawful for all purposes 
These d,.c,s,o„s nu,st ho supported, if at all. hv a strict 
v.ew of the policy of the local statutes for securing the 
observance of Sunday. They are not generally considered 
good law, „ud have been expre«,ly diss.,.nted from in 
some other States (;?). 

The principle now deHned by the Supreme Court of 
Massachusetts as generally applicable is that illegal con- 
duet of the pla,„t,tf which contributed directly unA proxi- 
mately to the injury suffered by him is equiv„le„,.a, 
matter of law, to contributory negligence (,). 

It is a rule not eon.ined to actions on contracts that U, .„, 
tl^.4J^tiff^annot recover where in order to maintain '"''°\... 
l^.^po..l claim he must set up an illegal agreement .^"th^ 
^-^h^...l^h««elf._i^ been a party" (r): but its i^"* 
« to act.ons of tort is not frequent or normal. T' J ,, 
The ease from wluch the foregoing statement is cited is "T^^ 
tl.e only clear ,.xan,ple known to the writer, and its facts ''^^^'ff 
wore very peculiar. ^** '^'0-^t.iMi 

(.p) Sutton V. Town of U'<ttt- 
"•(itoia (Wixronsin, 1871) Bige- 
low L. 0.711, and notej thereto, 
pp. 721-2; ,. c. in Jcr. Smith". 
<'asos on Torts, ii. US, «ec note, 
"/. Xni see White v. Lniin, 128 
-Mm. 598; Bucher v. Ckahire 

"It- Co., 125 U. s. Mo; Fioto, 
U3-4. ' 

(?) yewcoinb V. lioitlon Pro- 
tective Depart. (1888) 146 Jlllm. 
596, Jer. Smith, op. cit. ii. 123. 

<r) .Maule J., Fimz v. .MM, 
(I846)2C. B. 501,513:69H B 
514, 521. 



ol reme- 


At common law there wore only two kinds of redresi' 
foi- un actionable wrong. Oiio was in those cases 
exceptional cases according to modern law and practice— 
where it was and is lawful for the- aggrieved party, as 
the common phrase goes, to tnki^ tho law into his own 
hands. Tho other way was an action for damages (a\ 
Not that a suitor might not obtain, in a proper case, 
other and more effectual redress than money compensation: 
but he could not have it from a court of common law . 
Spceilic orders and prohibitions in the form of in- 
junctions or otherwise wcie (with few exceptions, if 
any; {bj in the hand of tho ChanceUor alone, and the 
principles according to which they were granted or with- 
held were counted among the mysteries of Equity. Bui 
no such distimtions exist under tho system of the Judica- 
ture Acts, and every branch of the Court has power to 

(a) I'ossession could be recov- 
ered from an early time, though 
not at first in an action of eject- 
ment. IJut this was an action of 
trespass m form only. Tn sub- 
stance it took the place of the old 
real actions, and it i» 8ometime» 
railed a real action. Detinue was 
not only not a substantial excep- 
tion, but hardly even a formal 
one. for the action was not really 
in tort. 

(6) I do not think any of the 
powers of the superior courts of 
common law to ispuf upeoific com- 

tnande (e.y. mandamus) were ap- 
plicable to the redress of purely 
private wrongs, though they 
might be available for a private 
yerson wronged by a breach of 
pul)Uc duty. Under the Com- 
mon Law Procedure Acts, from 
1854 to 1875, tho superior courts 
of common law had limited 
powers of granting injunctions 
and administering equitable re- 
lief. These were found of little 
importance in practice, Knd tht-r 
is now no reason for dwelling' ok 


adininistw every romody. Therefore we have at (his 
day, ,n considering one and the same jurisdiction, to bear 
in mind the manifold forms of legal redress which for our 
predecessors «ero separate and unconnected incidents in 
the procedure of different courts. 

iJcn.cdics available to u party by his own act alone .Self-help 
may be mcludcd, after the example of the long-ratablishcd 
(ierman ims", in the expressive name of nelf-kelp. The 
riglit of private defence appears at first sight to bo an 
obvious example of this. liut it is not so, for there is 
no question of remedy in such a case. We are allowed to 
repel force by force "not Cor the redress of injuries, but 
for their prevention ' (c): not in order to undo a wrong 
done or to get compensation for it, but to cut wrong short 
before it is done; and the right goes only to the "extent 
necessary for this purpose. Hence there is no more to be 
said of self-defence, in the strict sense, in this connexion. 
It is only when the party's lawful act restores to him 
sometliing which lie ought to have, or puts an end to a 
state of tilings whereby he is wronged, or at least puts 
pressure on the wrong-doer to do him right, that self -help 
is a true remedy. And then it is not necessarily a com- 
plete or exclusive remedy. The acts of this natd're which 
we meet witli in the hiw of torts are expulsion of a tres- 
passer, retaking of goods by the rightful possessor, distress 
damage fea.sant, and abatement of nuisances. Peaceable 
re-entry upon land where there lias been a wrongful 
change of possession is possible, but hardly occurs in 
modern experience, .\nalogous to the right of retaking 
of goods is the right of appropriating or retaining debts 
under certain conditions; and various forms of lien are 
more or kss analogous to distress. These, however, 

(r) Thi» ia well noted in C.K.lev on Torto '1st ed: .".o 


■ f 





! i 





belong to the domnin of contiact, and wo me not now 
concoinod Avitli thorn. Such are tho species of lomcdial 
self-help recognized in the law of England. In every 
case alike tho right of the party is subject to tho rule 
that no greater force must be used, or damage done to 
property, than is necessary for the purpose in hand. In 
some case"! tho mode of exorcising tho right has boon 
specially modified or regulated. Details will best be con- 
sidered hereafter in rehtion to tho special kinds of wrong 
to which tliose kinds of reilross are applicable (d). 

We pass, then, from extra-judicial to judicial redress, 
'■ from remedies by tho act of the party to remedies by tho 
a.a of tho hw. Tho most frequent and familiar- of these 
is the awarding of damages (c). Whenever an actionable 
wrong has been done, tho party wronged is enHtkd to 
recover damages; though us wo shall immcdiaUdy see, 
this right is not necessarily a valuable one. His title to 
recover is a conclusion of law from tho facta deterrainod 
in the cause. Huw much he shall recover is a matter of 
judicial discretion, a discretion oxereisod, if a jury tries 
tho cause, by tho jury under tl-.e guidajuio of a judge. 
As we have had occasion to point out in a former 
chapter (/), the rule as to "measure of damages" is laid 
down by the Court and applied by the jury, whose appli- 
cation of it is, to a certain extent, subject to review. The 
grounds on which the verdict of a jury may 1)C. sot aside 
are all reducible to this principle: the Court, namely, 

^ust bo satisfied not only that its own finding would have 
_jen different (for there is a wide field within which 

(tl) Cp. Dlackstono, Bk. iii. 
c. 1. 

(«) It la hardly needful to 
refer tho reader for fuller illws- 

tratiun of tho uubject to tio well 
known a work aa " Muync on 
(/) P. -31. abovo. 


opinions and estiiunto, may fairly differ) {g), but that tho 
jury did not oxercise a duo judicial discretion ot all (A). 
Among these grounds arc the awarding of manifestly 
jexcessivo or manifestly iuadequato damages, such as to 
-imply that tho jury disregarded, either by excess or by 
.defect, the law laid down to them as to the elements of 
idamage to ho considered {i\ or, it may be, that the verdict 
irepresents a compromise between jurymen wlio wore rcaUy 
;not agreed on tiio main facts in issue {k). The jurisdiction 
■jis to order a now trial, not to give judgment for an 
amended amount of damages, which can bo done only by 
■consent (0- 

Damages may bo uojuijial, ordinary, oi- uxoi,(ui)lary Nominal 
Xommal damages are a sum of so little value as com- *^*"- 
pared with tlie cost and trouble of suing that it may be 
said to have "no existence in point of quantity " (m) 
such as a shilling or a penny, which sum is awarded 
with the purpose of not giving any real compensation, 
buch a verdict means one of two things. According to 
tho nature of tho case it may be honourable or contu- 
melious to the plaintiff. Either the purjiose of the 
action IS merely to establish a right, no substantial barm 
or loss having been suffered, or else the jury, whUo 


j) Tho principlo is taiiiiliur. 
See it stated, ^.j. 3 (J. B. niv. 

(/.) a™ M,l,nim!il«,i II, !■<,. 
V. lrn!,it (1880) II .V,,,,. (■„. 
IW, 55 L. J. Q. L. 401 ; /.,.„„, 
V. G.a/inm (1889) 24 Q. 1). Div 
53, 59 L. J. q. B. 213; Coj: v. 
AVij«,*, ScollM, „„d Amtraliau 
B«"*[19061 A. C. 108, 74 1.. J 
P. C. 62. 

(0 Phillipt V. L. ,f s. ir. Jl 
Co. (1879) 3 Q. B. Div. 78. 49 

r-. .1. Q. B. 233, whore, on tho 
facts shown, a verdict for 7,000/. 
was sot aside on tho jfround of 
the damages being; insuBcient; 
■lolcmtm, V. O. tv. s. Co. [1904] 
2 K. B. 250, 73 L. J. K. B. 568, 
C. A. 

(*) Falvny v. Hlmiford (1874) 
r.. R. 10 Q. B. 54, 44 L. J. 
«. B. 7. 

(0 IKall V. ll'an ri905] A. C. 
11.5, 74 L. J. K. B. 438. 
!»•) Maulo J. 2 ('. B, 499. 



unable to deny thot some legal wrong has been done 
to the plaintiff, have formed a very low opinion of the 
general merits of his case. This again may be on the 
ground that tho harm he suffered was not worth suing 
for, or that his own conduct had been such that what- 
ever he did suffer at the defendant's hands was morally 
deserved. The former state of things, where tho verdict 
really operates as a simple doclaratiou of rights between 
the parties, is most commonly exemplified in actions of 
trespass brought to settle disputed claims to rights of 
way, rights of common, and other easements and profits. 
It is not uncommon to give forty shillings damages in 
these cases if the plaintiff establishes his right, and if it 
is not intended to express any disapproval of his con- 
duct («). Tho other kind of award of nominal damages, 
where the plaintiff's demerits earn him an illusory sum 
Inch as one farthing, is illustrated chiefly by cases of 
defamation, where tho words spokon or written by the 
defendant cannot be fully justified, and yet the plaintiff 
has done so much to provoke them, or is a person of 
such generally worthless clmractcr, as not to deserve, in 
the opinion of the jury, any substantial compensation (o). 
This has happened in actions against the publishers of 
newspapers which w ere famous at the time, but have not 
found a place in the regular reports. Nominal damages 

(n) Under the various statutes 
as to costs which were in force 
before the Judicature Act*, 40«. 
was, subject to a few exceptions, 
the least amount of damages 
which carried costs without ft 
special certificate from the judge. 
Frequently juries asltcd before 
giving their verdict what was the 
least sum that would carry costs; 
the general practice of the judges 
was ' to refuse this inrormation, 

see n'ilion v. Seed (1860) 2 F. 
L P. at p. 153, 121 B. R. at 
p. 786. 

(o) Kelbj v. Sherlock (1866; 
L. E. 1 Q. B. 686, 35 L. J. Q. 1). 
209, b a case of this kind where, 
notwithstanding that the libels 
sued for were very gross, the jury 
gave a farthing damages, and the 
Court, though not satisfied with 
the verdict, refused to disturb it. 


may al«, bo given whore there has been some mo-^ i„ 
generaUy justiMnblo aota of self-defenoo or solf-help (p). 

The enlarged power of tne Court over oosU since the 
Judicature Aet» haa made the question of naauaal 
dftSSges, whioh undc • the „ld procedure, were described 
a« a more peg on wLl.h to hang eoste" (,), much less 
important than it formerly was. But the possibility of 
recovering nominal damages is still a test, to a certain 
extent, of the nature of the right eliimod. Infringements 
of absolute rights like those of personal security and 
property give a cause of aetion without regard to the 
amount of harm done, or to there being harm ostimabk 
at any substantial sum at all. As Holt C. J said in a 
celebrated passage of his judgment in .Uhbn v. White (r) 
a damage umt merely pecuniary, but an injury import's 
<Umi<ige, wJwn a man is thereby hindered of his riyht 
As in an action for shinderous words, though a man docs 
not lose a penny by reason of the speaking them, yet he 
shall have an action. So if a nmn gives another a cuff on 
the ear, though it cost him nothing, no not so much as 
a little diachylon, yet h. hall have his action, for it is a 
personal injury. So a man shall have an action against 
another for riding over his ground, thougli it do him no 
Jamage; for it is an invasion of his property, u„d the 
other has no right to come there." 


onlj when 

lata right 
is in- 

(p) Harrison v, Duke of Kut- 
l«nd [1893] 1 Q. B. 142, 62 I. J. 
Q. B. 117, C. A. 

(?) By Maule J. (1846) in 
SiaumotU V. Grealhead, 2 CD. 
499. Under tlio present proce- 
dure costs are in the discretion of 
tlio Court; tlie costs of a cause 
tried by jury follow the event 
(without regard to amount of 
(iamagej) nnlejs the judge or Ihc 

Court otherwise orders: Order 
LXV. r. 1, 4b. The offoot of the 
Judicature Acta and Ruloa of 
Court in abrogating the older 
statutes was settled in 1878 by 
earnett v. Bradley, 3 App. Ca 
9", 48 L. J. Ei. 1S6. A .ketch 
of the history of the subject is 
given in Lord Blackburn'.H judg. 
ment, 3 App. Ca. pp. 962 s„. 
(») 2 Lord Baym. at p. 955. 



Cmw On the othe hand, there arc coses evcii in tho law of 

^SnlM property where, as it i» said, damage is the gist of the 
^■Sf*^ action, and there is not an absolute duty to forbear from 
doing a certain thing, but only not to do it so as to cause 
actual damage. The right to the support of land as 
between adjacent owners, or as between tho owner of tho 
surface and tie owner of the mine beneath, is an example. 
Here there is not an easement, that is, a positive right to 
restroin the neighbour's use of his land, but a right to 
tho undisturbed enjoyment of one's own. My neighbour 
may excavate in his own land as much as he pleases, 
unless and until there is actual damage to mine: then, 
and not till then, a cause of action arises for me(;M). 
Negligence, ngain, is a cause of action only for a person 
who suffers luhil harm by reason of it. A man who 
rides furiously in tho street of a town may thereby 
render himself liable to penalties under a local statute or 
by-kw; but he does no wrong to any man in particular, 
aind is not liable to a civil action, so long as his reckless 
behaviour is not tho cause of specific injury to person or 
property. The same rule holds of nuisances. So in 
an action of deceit, the cause of action is tho plaintiff'^, 
having suffered damage by acting on tho false statement 
made to him by the defendant (0- In aU these coses 

(•) Backhoute V. Sonnmi (1861) 
9 H. L. C. 503, 31 L. J. U. B. 
181; Dfirleij Mciin Collierff Co. 
V. Mitchell (1886) 11 App. Ca. 
la?, 56 I/. J. Q. B. 629. Ao- 
cordin«ly depreciation duo to 
risk of future subsidence is not 
properly included in an inquiry 
as to damages: West Leigh 
Colliery Co. v. TunmcUffe aM 
Hampion [1908] A. C. 27, 77 
L. J. Ch. 102. DlEt. Hall v. n-te 
of Norlolk [19001 2 Ch. 493, 69 

L. J. Cli. 571 (no cause of action 
at all against the owner at tlio 
date of tlie damage, which was 
caused by tho acts not of himielf 
but of a prede.-essor in title). 

(() Pimlifexy. Bigm'd (1841) 
3 Man. t O. 63, 60 B. R. 454. is 
Bometimes quoted as if it were an 
authority that no actual damrige 
is necessary to sustain an action 
of deceit. But careful examina- 
tion will show that it is far 
from deciding this. 



of roa. d,....,„ ,,i„, tho foundation of U.e ,JZi 

« d„„,„g„ tho. is not „ueh of it, and th./tho e i 
.. « .ord-nKl, f„.. a sn.all „n>ount. I.ut th- .„„1,„., 
of the amonnt will „„t n,.ko ,uoh dan^a^o. nomina 

S"''r:"i "' '' " "'"' ""'■■'""'^^ """•' '■■'™ '" - 

fo.ed. rn « ,„,lwa.v aeeident due to (he ne^li^-enee of the 

f 1. " ", : "■;"""■'■ '" '"■^'""-" ^- " ^"»- <'"V". nn 

111 r '" "'°""" ''"■""''"' '» 'I'" "''"- five 
«h.ll ng». Eve,,v one of then, i, entitled, neither mo" 
noMo™ than tho otho., ,o ., „,...,„.,; „,,„-;;- 

hettenlbtlu."*' T"':' '"" " ™'*""^'>- «"" "- "-"«■ 
between ubsolute and conditional title to a legal remedy 'i'r,"" 

out an, a legation or proof of spoeial damage (in ^-hid, 
cu.e to pi untiff „ ,„,i„„d ,„ ,.„,„i„^, ,^_ f ^^^ ^^^d' 
nd others not; while as to written words no sueh d t 
t. etion IS made. The attempts of toxt-books to la 
rational theory of this are not satisfactorv. Probablv ho 
oxisting condition of the law is the ro.„.; of some „ e 
historical accident (») . "osi-ui o 

Ord innry rlnmn yes are a sum awarrlerl «^ . f ■ 

of compensation to the p..inti;:Thraru:r;r;"::-^^ 

f«. the defendant s wrong-doing, but in ^o case exceeding 
'.he amount claimed by the plaintiff himself (^) Such 

(-) A jury h« be.„ k^rio LenTt °,h:r I" ^'■" ^■"''''- 



amount i. uot ncce««ily th..t which it ««.ild cost to 
restore tht' pUintill to hi. former condition. Where a 
U'nant for year, carried away a hrgo quantity of valuable 
noil from his holding, it «■«. decided tliat the reversioner 
.»uld recover not what it would cost to replace the sod, 
but only the amount by which the value of the roverMon 
wa» dimini.hed (.y). In other words, eawtiausition, UOt 

I restitution, i» generally the proi>er t«t (r). Beyond this 
it is hardly possible to by down any universal rule for 
ascertaining the amount, the causes and circumstances of 
actionable damage b.Mn^ inliuitely various. .Vnd in 
particulir classes of ca.-os only ai^roximate generalization 
is possible. In proceedings for the recovery of spccihe 
j.ropirtv or its valuf ther - is not so much ditliiulty in 
assigning a measure of damages, though here too there 
are unsettled points («). But in eases of personal injury 
and consequential damage by loss of gains in .i business 
or profession it is not possible either completely to separate 

' the cU-ments of damage, or to found the estimate of the 

" 11 will not do for ilr. Juitice 
Kay, or 'or "■'" Court, to eier- 
lUo thot unknown equity which ii 
Hotnctimr* rxcroiactl by juries: " 
Cotton I.. .1.. Dreulm v. /Viii- 
,.io„ limiw, Co. (1889) 43 Ch. 
Div. 316. 327, 62 L. T. 318. 

(J,) lt/iHhim V. Kiriliaw 
(1886-6) 16 Q. B. Uiv. 613, 54 
L T. 121; fp. Kmt v. Viclnriu 
nravina Dock Co. (1887) 36 Ch. 
Div. 113, 56 L. T. 216; Chifftriel 
V. Walton (1888) 40 Ch. D. 45, 
58 L. J. Ch. 137 (compenalion 
under conditions of »alc). But 
where another man's land ij used 
without right, its value tor the 
purpose for which it U so used 
is talicn into account in aacssiag 

damages: Whllirhum v. Hrjl- 
mimtfr Brymbo Co<il i Coke Co. 
[1896] 2 Ch. 538, 65 L. J. Cii. 
741, C. A. 

(j) There is an o\.r],lion 
(hardly a real one) where the 
ptaintigs are n eorporaticm or 
trustees charged with the main- 
tenance ol a highway or other 
public work; beinfr bound to re- 
store the property in their chiirRi- 
if damaged, they are entitled to 
recover from the wrong-doer the 
full eost of doing to: jrednethiirn 
Corporation v. lodge llotet Cat- 
Hern Co. [1907] 1 K. B. 78, 70 
L. J. K. B. 68,C. A. 

(fi) See Maync on Damages, 
7th ed. c. 13. 


'whol.. o„ „„,v,l.„.^ like „„ .,,„,., „,,,„,|^^,. 

.tie douU , ha, i„ f,,H the ,n«.,.. i, .,,■,,,,/„, ,3, 
h, cL.., „vo„ a rough,. ..,.., H.a„ it a„,H.,.,. t. . " 

and ra.„li,i„„ i„ |if, „,• ,|„. " " «""''l' 

rj 1 "'^T''''' ''"''''■' "'■'''■"«-vhi,.h,h,.|,,w 

md,g„at,o„ at the dclV„da„t« ,vr«n„ rathoL- th „ 
f»t upon tho plaintiH , h«,. ,>,„";: ^'m " '" "" 

-ongs ,„ whinh th,, a,.e appli.ahlo arc thl , 1 

■-.des tho violation of a nght or tho aeH.a. da ■ 

n.port ,„sult or outrage, and ,o are not n.orolv , « ^ ,' 

but <»,,,™„. ,„ the ,tri..,o,t,w,,, ..,,,,, „,-,,,;; 

The .reok ,i,„ p^rhap, ,,o„o.. with .tdl greater ov" 
ne»s the .,,„,,,,• „f tho acts ,vh,Vh are thus tr^M ■• T : 
tort ,8 aggravated by the ovil motive - (c) 4, 

and fa.ein,pri.nmeut under e„,oar:ri ret; ir;;: 
.n hreaeh of the genera, ,„., and agaiL the , ; 

ofthe,uhjeet(rf),. a«.„„t„„tr»pa.sonland.porsi„'; 


(*i S»' Iho «uniniiii)r ,i|, „f 
l''M J. In milii,, V. I, f s ,y 
"■ f". (1»79) 5 Q. II. J)iv. 7K, 49 
I- •'• fi. B. 23.1, whkh wa, in UiB 
"""" ai'l>™votl l,y the Court of 

fi-t .l/iV»»„fc,. 4v. /,. ,, ,,„ 
V. ,l,m, (1875) 01 I- (^ ^^g_ 

^': //«-X'> V. .l/,,„«,y (17631 2 


W lis. 211.5. mm of the braiidio. ,if 
"'" Srrat .as,. „f ,,o„„.,l „.,,,. 
'■""'»■ ""> Plointiff „a. ,l,.la d 

al>"ul si., |,„„rs „„,| ,.i,i||,. 

Ircnlcl, "i-„tn|.taii„,,| „itl, |,„,[ 

""■"'"' ""'1 l"^"-." Lut tlifl jury 
"as m.hold in „|,.i„„ 3„,|, 

'"".'"'""''"■<■»"«"" was am,,,,; ,,„|,|i,. .,tt„,.^ ,^,_,|, ^ 

tlic lil.erly „f n.^ »„l,j,.,,t.- ,■ 


in with violent aud intemperato behaviour (c) ; the 
seduction of a man's daughter with deliberate fraud, 
or "Irtlierwise under circumstances of aggravation (/); 
such are the acts which, with the open approval of the 
Courts, juries have been in the habit of visitmg with 
exemplary damages. Gro^» defamation should perhaps 
be added; but there it is rather that no definite principle 
of compensation can be laid down than that damages 
can be given which are distinctly not compensation. It 
is not found praedcable to interfere with juries either 
way ((?), unless their verdict shows manifest mistake or 
improper motive . There are other miscellaneous examples 
of an estimate of damages coloured, so to speak, by dis- 
approval of the defendants conduct (and in the opinion 
of the Court legitimately so), though it be not a case for 
vindictive or excmpkry damages in the proper sense. In 
an action for trespass to land or goods substantial damage, 
may be recovered though no loss or diminution in value of 
property may have occurred (ft). In an action for negli- 
..ently pulling down buildings to an adjacent owners 
damage, evidence has been admitted that the defendant 
wanted to disturb the plaintiff in his occupation, an.l 

Hcotl V. Donald (1886) 165 U. S. 
58 (wrnn(?9 done under colour of 
an unponstitutional atatutf). 

(e) Merest v. Ilnrvei/ (18U) 6 
Taunt. 122, 15 R. R. 54S: the 
ilefenilant ^^ as drunk, and paMing 
by tlie plaintilt'ii land on which 
Hie plaintiff waa shciotinj, in- 
sistel, with oaths and threatl. on 
joining in the sport; a »ordiot 
passed for 5110/., the full amount 
i.lnimed, and it »a, laid down 
that juries ouRlit to be allowed 
10 puni.h insult by ..xoinplary 

(/) Tulltdgt V. Wade (1769) 3 
Wila. 18: "Actions of this sort 
are brought for example'a Bake." 
(ff) See Forsdike v. Siwr 
(1868) L. R. 3 C. P. 607, 37 
L. J. C. P. 301, where a verdict 
for 1«. was not disturbed, though 
the Imputation was a grosi onr: 
op. Kelly V. flherlciek, p. iss, 
note (o), above. 

(A) Per Denman C. J. in Ex. 
Ch., llogrrs v. Spence, 13 M. 'V 
W. at p. 581, IS L. J. Ex. 4tli 
Urmer v. Jlrw (1843) U .M. '^ 
W. C2S, 63 R. R. 690, 693. 



• i-ry to take in o cL^" r " Z^' ""'"''^ '''"''°"- 
the defendant 'srS ! '' ""'''^<'-"<'"^ "f 

"Khte and of his cor L^ w" 8 hi ''^ '"''"'^"'' 

■■-- -^ ■■ ""■" (')■ Substantial damagesvSgi 1 

have been allowed fo; ''^^ ^''''^'-tial damage _ 

paper .«kng,„, to the p t^ T ^^7 ;»'"» - "f/-^^^ 
P^bfction of the libel (*)' '''"'™''' "'^'^ *- ""^^-^JK 

ioco:i::t:~::^r;::t;r- ^"" ^-^ -'^''^ 

'here is a diiferenoe botw^' ™™P''"-'ion, that 

I'esult of such negli.7n;iT ''"'' '''''''' '^ ""^ «-« 

-.panied with e^'.-ol^.l^'^^;^''-'' ^^ 
that in act ons of nB<^l,n.„„ .u '™<*- I (Is.not sav 
damages such asare" t^r" " "'"'"''' "^ "'"'-'-; 
^hut^he measure of d'll t ^T '" "''""^ »* ^^-P-. 
to the natare oUkt7Z;:Ttte'^'''''''^^^^^^^^ 
which it is accompanied S ' "acamstanocs with 

exemplary damages, thou.>h tb„ . •" ''' ""='"' t''^" 

i>om the oharactl o^Zt^ZT ""' '" '"''''-• 
was done (w). ^ ^ ""' "V "> which it 

All these eases of ago-ravHto,! ri .„ 

distinguished from the much m ^^ ""'' ^ ''"'''""3- 

ovil motive is, or ha Tor ""'T^P'^"""^ ^' where 

»f the cause of actilt:;""^'^ '" "^^ " "^^^^-^ P-t 

(') IV-llork I'. B, ,i H. i N. 

■'". 3" i. J. E». 72 c„ „ 



M K 








of breach 
of promise 
of mar- 
riage to 
torts in 

Mitig a- 

rent bat 

causes of 


The action for breach of promise of marriage, being 
aa action of contract, is not within the scope of this 
work; but it has curious points of affinity with actions 
of tort in ite treatment and inoidonte; one of which ,s 
that a very large discretion is i^iven to the lary as to 
damages (n) . 

As dajnages may be aggravated by the defendant's ill 
behaviour or motives, so they may be reduo^d by proof of 
provocation, or of his having acted in good and 
manv kinds of circumstances which wiU not amount to 
instification or excuse are for this purpose adm.ssible and 
material. ' la.alU»ies. '^te'e «,otive maj:> ground of 
aggravation, evidence on this score will also be admissiblo 
i^Slction of te.g«s" (o). F- the rest tha is an 
afiair of common knowledge and .practice rather tlian ot 
reported authority. 

-Damages resulting from one and the same cause of 
action must be asse^od and recovered once for all : 
but where the same facts give rise to two d.stmct c^usc. 
of action, though between th3 same parties, ac Uon and 
judgment for one of these causes will »« "« /">-^ '» " 
ubsecuent action on the other. A man who ha. had a 
Iverdict for personal injuries cannot bring a fresh act, u 
if he afterwards finds that his hurt was graver than W 
Luppcsed. On the other hand, trespass to goods is uuL 
ithe same cause of action a. trespass to the person aiul 
the same principle holds of injuries caused not 1 - 
voluntary trespass, but by negligence; hei.foro wIk . 
the phiintill, driving a cab, wa^ run down b> a ^a,. 

(ii) See, 

Il,rr<i V. Vti 
Co.ta (1866) L. i: 1 C. P. 331, 
35 L. J. 0. P. I'Jl I'lil "'" ""' 

chapter ot the present »"rK. 

<,d fin. 

(li) Mnyne on Uaniagej, I2S 

nogli,o„tly driven by tho defendant's ...vant. and the 
t ""."""'"f ' -d "- plaintiff suffered bod 1 harm 

L . .*"' "'"" """^ -'I recovering Ltr* 
dam-^e to the eab the plaintiff wa. free to br „. ! 

s:;:" 7 ^^r •?— ^-i-^- c)- "paltTo: 

•n the aame mutter, elai.ns for danaage, a^ain t them 
cannot be combined in the ., me action (r). " 

Another remedy which is not like that „f 1 

~aib- applicable, b.t .ui^l:^,^:"z;^- 

^nds of wrongs where tho reme<ly of'dam.gcs Z2 
ho ,nade,,u„te or practically worthier, is the -ranS 
of an .njunefon to restrain the ocm.nission of ^roS 
acts threatened, or the oontinuauce of a wrongful eon ! f 
act,on already ,«gnn. There is now n: pos St TmT t 

h Court s own v.ew (a judieiul view, that is) of what is 
just and conven.ent (.). P.,,otically, however, the lines „" 


0') Unimd,,, V. llumphi,,, 
'»«4) H Q. B. Div. 141, 5, 
I" J Q. B. 470, by Brelt Jf. R. 
«■>< Bowen L. J., *•.,. Lord 
Col»r„lye C. J. Op. per L.,rd 
Bramwell, II App. Ca. al p. 144. 
<?) L.ber homo suo nomine 
"t'len, A,|uiliuo habot .,.ti„„nn ; 
Hi'MtoD, onim non habet, ,mo- 
n'ara dominu., mcmbrorum ™„- 
'""' """"» vidolur: Ulpian B 
». 2, ad 1. Ar|uil. 13 pr. 

ff) Sadler v. (7. ;^. ji „ 
11896] A. C. 450, 65 L. .1, Q. B 

162, wliere two defendants had 
mdependently hut simultuneoujy 
ojftructed tlie accei. to the plain- 
fit » shop; followed in -/■/!„„,»„, 

n» f ?• 1: f"*™J ■ «■ «• ««. 

68 1.. J. Q. B. 625, C. \.; di,t. 
'^I'ten V. r/rr^n f 1999 J 2 Ch.' 
696. US I.. J. C:.. 730. An oh- 
'■"■""" °" ""a Kr.,„nd, as it goei 
'» tl,e j„ri«li,.,io„. i, too late 
''Iter juil^raint: IIMock v. L e 

"■ ''"■ I'™"] 1 K. B. 264, 76 
r- J. K. B. 127, 0. A. 
Cs) Judieainro .\rt, 1873, », 25 


the old equity jurisdiction have thus far been in tJie main 
preserved. The kinds of tort against which this remedy 
is commonly sought are nuisances, violations of specific 
rights of property in the nature of nuisance, such as 
obstruction of light and disturbance of easements, continu- 
ing trespasses, and infringements of copyright and 
trade-marks. In one direction the High Court has, since 
the Judicature Acta, distinctly accepted and exercised an 
increased jurisdiction. It will now restrain, whether by 
jSnal (<) ar intedocutory (a,) injunction, the publication of 
b, libel or, in a clear case, the oral uttering of slander (x) 
^jaklUated to injure the plaintiff in his business. In 
interlocutory proceedings, however, this jurisdiction is 
axsrcised with caution (a), and only in a very clear 
case (i/), and nflt where the libel, however unjustifiable, does 
not threaten immediate injury to person or property (s). 

On what The special rules and principles by which the Court is 

^3'!' guided in administering this remedy can be profitably 

discussed only in connexion with the partioulir causes of 

action upon whii:h it is sought. AU of them, howevir, 

I are developments of the one general principle that uu 
injunction is granted only where damages woulu lot 
be an adequate remedy (a), and an interim injunction only 

(z) Jltrmnnn Looff v. Bean 
(1884) 26 Oh. Div. 806, 53 L .1. 
Ch. 1128. 

(y) Bonnnrd V. PMrryimn 
[1891] 2 Ch. 269, 60 L. J. Ch. 
617, C. A. 

(s) S'll/ri'""'"' " Kf\is^* [18111] 
2 Ch. 294, 60 L. J. Ch. 743, 
O. A. 

(fl) As to simple trespas.- on 

^ land, see Brhreni v. Rirh'tnh 

"l! J. Ch'. [190.i] 2 Ch. 614, 74 L. J. Ch. 

»ub-s. 8. Per Josel M. H., 
Beddow V. Brddow (1878) 9 Ch. 
D. 89, 93, 47 L. J. Ch. 588; 
Qmrlz Hill. ic. Co. V. Bmll 
(1882) 20 Ch. Div. at p. 507. 

(i) Thorlts'n I'tittlr Food Co. 
V. Mouam (1880) 14 Ch. Div. 
763; Thomm v, Williamt, <b. 

(u) Qmrtz Hill Consolidated 
Gold Mining Co. v. 1 
20 Ch. Div. 501, 51 
874; Collnrd v. .Warihall [1892] 615. 
I Ch. 571, 81 L. J. Ch. 268. 


being treaW s fill h "''"^^ the prooondin^s 

decisL of the i", r""'"' "''™ "^PI^-'^ 'hat th. 
the whole ol -'-'-"to.y question g«. to th. ,„eWt. of 

In certain of fraud (that is, wilfullv or recklessly 

&>'»' Vt-.'- -in substance, howevnr tl,„ r p 

giving dan.,ges under anothe L ''^ ^''^ .r™ '" 

-ether the r:ili^:.:^i,-;-V-,« 
damages or restitution: unless i„dee,l I '^ 

in ^uch a case that (according t^ttL^Td:: '""" 

'e.ards .juries to proport,)^) the pi:;::,;*i::^::- 



tion of 
law aud 
eq-iity to 
(five com- 
for fraud. 

(i) In .tf„y„/ .si„„„,iii, t.„ 

I; n'';''T'' ''°"' * ''"• ("85) 
15 Q. B. D. 476, H L. 3. Q. B 

MO, the Court refused to gr,„t 

7 '."lorloculorj- injunnti,.n to ro- 

etrain a oonno of conduct allcifed 

'".""""""'"""""Piracy of rival 
-lupowner, to drive the ,]„!„. 

Ms Alps out of the f'hiua trade. 
The d«,„i„„ „f ,jj ^_^^, ^_^ ^1^^ 

"•'"• i» -iMlt with elsewhor,.. 
jc) «„„„,„„ ^. i„^j 

Ves. ..70, 8 n. B. 33,856: 
■I'm V. CroM/irr fI8(IO) 1 U. P. 

'f «■ R- 52!, (th„.«, ,„„, 

torical illustration). /.,.,,,(, ,. 
r;.,,..^ ,,87,-3) L. ,i. ,3 ^■ 
9. 6 It. L. 377, 43 L. .,. ^. 
»■ See under the head of 
"oc-clt, Ch. Vlir. below 
«l) Jo.,. V. aood,,,, (,8„) 8 
M. * W. 146, 10 r. .,. E,. 275, 
f R- R. «»,■ "'.>..// V. .swj 
for U,Ii„enl Blind (1882) 8 O 
f„ 'i '"• '' ''• '■ « B. 330;' 
Q. B. n,v. 61.3. rna,.,.ctio„f„. 


not to be restored to his former position or have his just 
expectation fulfilled, but only to recover the amount by 
which he is actuaUy the worse for the defendant's wrong- 
doing. Any contention of that kind would no doubt be 
effectuaUy excluded by the authorities in equity; but even 
without them it would scarcely be a hopeful one. 

Speotal Duties of a public nature are constantly doHned or 

t^S created by statute, and geuoraUy, though not invariably, 
lidSBve. special modes of enforcing them are provided by the 
same statutes. Questions have arisen as to the right* 
and remedies of persons who suffer special damage by 
the breach or non-pcrformonee of such duties. Here it 
is material (though uot necessarily decisive) to observe 
to whom and in what form the specific statutory remedy 
is given. If the LcgisUiture, at the same time that it 
creates a new duty, pointo out a special course of private 
remedy for the person aggrieved (for example, an action 
for penalties to be recovered, wholly or in part, for tlic 
use oE such person!, then it is generally presumwl that 
the remedy so provided was intendi.'d to be, and is, tlic 
only remedy. The provision of a public rpmcdy without 
any special means of private compensation is in itsiH 
consistent with a person specially aggrieved having' an 
independent right of action for injury c-auscd by a brcai h 
of the statutory duty (e). And it has Iwen Ihouglit to lie 

inducini; the iilninliB by false 
statemi'iits to tak« sharcH in a 
company, ir in -"aid that tlic 
mcftsuri' of damages is tlio ditfor- 
enco bfitwecn llio sum paid for 
tlie sharps and thoir real vidnc 
(the market vaiiu' may, of course, 
hiivo liecn fictitious) at tiie date 
of allotment: I'eok v. Tlfrry 
(1HS7) .17 rh. Div. 511. •ml, ." 

L. J. Ch. 317. 

(«) ffo«»v. ««7./'-f '"''(18761 
1 Kx. n. 269, 15 L. J. lix. 7T7; 
but tin. whether this ea-o ran now 
Imj reli'Kl on; it was deciihd 
partly on the antliority of 
Alkhi'n'ii V. XetrCJ^He ti'nhi- 
irork, Co. (18'1) I-. H. i;.i. 
401, afterwanls rcvfr,.ed in llie 
Court of Appeal (sop note ((/I). 


a gener.! rule that where the statutory remcdv i. not 
apphouble to the compensation of a person injulej, that 
per«.n haa a right of action (/) . But the Court of Appeal 
haa r„p„di„,ed any such fl.ed rule, and has laid down 
that the poMy or otherwise of a private right of 
actoon for the breach of a public statutory dut/must 
ie^enu^on the scope and hnguage „f the statute taken 
N^ whole. A waterworks companj wa. bound bv the 
Waterworks Clauses Act, 18-17, incorporated in the "com- 
pany s special Act, to maintain a proper pressure in 
ito pipes, under certain public penalties, rt was held 
that .n inhabitant of the district served by the company 
under this Act had no cause of action against he company 
for damage done to his property by fire by reason of the 
pipes bems insufficiently oharge.l. The Court thought 
It unrea«,nable to suppose that Parliament intended to 
make the company insurers of all property that iniWit 
he burnt within their limits by reason of deficient sup^lv 
or pressure of water ((;). ' 

for'\t ' ~^;" ^^'P™' "' «'-'■ - -tion is brought N„priv..e 
for the breach of a statutory duty must bo of the kind ::£\,^ 

l:«"-r>.unj (1837) 2 ^■. B. """^ 

(/) roiio/i V. Stce' (1854) 3 K 
^ B. 402, 23 L. 1. (I. B. 121, 

(a) .llkimnn V. yeire^iMe 
Watenrorh Co. (1877) 2 Kx 
Wv. 441, 46 L. J. E.V. 775; a 
mimewhul .sinjilnr Canaclinn case 
™ to Ka,worka i, .;,,/„„,„„ v. 
r™,„„„,„- ,,.„, Co. of Toronto 
[1898] A. ('. 447, 67 L. J. P. c 
3:1. Cp. Hl,.rrm V. ,/,.„™,.,|.,. 
('817) 11 Q. B. 731, 17 J,. J. (J. 
11. 103. nliore il was liehl that 
(ho lo,„l ,V,.l r,",.iilali„u'. uiiik-r 
penalties tl.o pilel,a,-,| fl^hery .if 
St. Ivc), Cornwall, Hid not irrate 
private rigliti ,.nfoi,.eal,|e \„ 
""•i™- '■'■■'>.? v/ Kl. /■„,,,.„„ „ 

-177, 26 L. J. c. P. 
2J3. 109 R. R. 765, „|,ore a 
Htaliitury provision for recovery 
liy .-lunimarv prnceeclinB» was 
licM to any HL-lit of 
nction (here, however, no private 
ilamage was in ejuostinn); and 
''""<"""• >•. FMr (1881) 1.3 (). n 
n. lOil, 53 r,. .). (J. B. 450. See 
further, a, to hishwa.vs, Cowlry 
V. Scrimrict /,„„,/ fl„,„^ 
ri892J A. C. 345, 67 I,. T. 486; 
Thompson v. Ma;/nr of Iti-i^hlon 
OtiVrr V. Lortit Itnaril oi U„r~ 
•ham [1894] 1 (J. B. .a'> 63 
L. J. y. U. 181, c. A. 



■uffen-diH which the statute was intended to prevent. If 

within th° ... 


aimed at 
by tbf 


doers may 
be sued 
jointly or 
fieTerallv : 

but judtf- 

any is bar 
to further 

being carried on a ship are washed overboard for want 
of appliances proscribed by an Act of Parliament for 
purely sanitary purposes, the shipowner is not liable to 
the owner of the cattle by reason of the breach of tho 
statute (A): tl mgh he wiU be liable if his conduct 
amounts to negUgence apart from the statute und with 
regard to tho duty of safe carriage which he has under- 
taken (i), and in an action not founded on a statutory 
duty the disregard of such a duty, if likely to cause harm 
of the kind that has been suffered, may be a material 

Where more than one person is concerned in the com- 
mission of a wrong, the person wronged has his ;-medy 
against all or any one or more of them at his choice. 
Esetv wrong-doer is liable for the whole damage, and 
it does not n-atter (as we saw above) («), whether they 
acted, as between themselves, as equals, or one of .ihem 
as agent or servant of another. There are np decrees of 
responsibility, nothing answering to the distinction in 
criminal law between principals and accessories. But 
Miten the plaintiff in such a case has made his choice, 
he is concluded by it. After recovering judgment against 
some or one of the joint authors of a wrong, he cannot 
sue tlie other or others for the same matter, even if tlio 
judgment in the first action remains unsatisfied. By that 
I judgment the cause of action " transit in rem iudicatain,' 
•and is no longer available (m). The reason of the rule 

(/,) n „i;i, V. Saot t (1874) L. 
R. 9 Ex. 125, 43 L. J. E.i. 92. 

(0 Hce per I'oUock B., L. It. 
9 Ex. at p. 131. 

(i) Blamira V. Ltru-. t, Yarlc- 
thirr It. Co. (1873) E.X. Cli. 1.. 

K. 8 Ex. 283, 42 L. J. Ex. 182. 

(/) Page 76. 

(m) Krinxmeiiii V. Jlan-inon 
(1872) Ex. Ch. L. B. 7 C. P. 
.517. 41 L. J. C. P. 190, Anally 
settled the point. It waH U>r- 


ir'*^ '"m^"'*' °"""*"'' ' ™""'"» ""Itiplioity of 
actions would be encouraged. 

_A» between joint wrong-doe« them*lv«>, o„. who h« Rule.,,, 

h« uo tight to mdemnity or contribution iVomTho "S^' 
«W („), ^he nature of the case is such that ho 'J "'^• 
|«.presuined to have known that he was doing an un^ 
Uful aof(„) otherwise, "where the m2r is i^- 
different .nitself,' and the wrongful act i. not dearly 
J!?gal(p) but may have been done in honcet ignorance 
or m good faith to determine a claim of right, there is' 
nonobjection to contribution or indemnity being claimed, 
fexman who employs another .. do an act which 
^«Bp]^yer appear. t<^have a right to authori^ him 

w„,t 1! r^^ '! ^"^'^^ "^ ^"^ '^ ""^t act« as 
mould^be lawful If the employer had the authority he 

L>t n T '^'"'''""' '"' '^"'''--^ *ho in good 
faith seUs goods in the way of his business on behalf of n 
person who turns out to have no right to dispose of then, 
;ia entitled to he indemnified by that person against th,. 
resulting liability to the true owner (,). And person. 

meply doubtful whether judg- 
nunl without satisfaction was a 
bar. And in fte United States 
It ia all but universally held that 
It is not: Uurdick on the Law ot 
Torts, 225. 

("99) 8 T. R. 186, 16 B. H. 
810, whore the doctrine ia too 
widely laid down. 

(o) '<*iai««Lj*_/6)-i,» (1827) 
« Bing. at p. 73, 29 R. R. 503, 
508. This qualiScation of the 
supposed rule in MtsrryumlAtr v. 
*'«'/» is strongly con«rmed by 

the dicta, c^peeially Lord Hcp- 
schell's, in falmcr v. H'icH „^ 

Co. [1894] .V.C.318, 321, where 
the actual decision was that no 
such rule exists in Scotland. See 
per Bruce J. in The E„.,u<k,mn 
nnd The Amtralifi [1895 | P. 212 
at pp. 216—218; and Suinw't 
V. KhoJa [1899] 1 Q. B. 816, 68 
L. J. Q. B. 545. 

fp) ietta V. Gibbm (1834) 2 
A. & E. 57; 41 R. R. 381. 

4 Bing. 66, 72, 29 H. R. 503, 


entrusted with goods as wharHngers or the Uke who stop 
delivery in puniuanco of their principal's instruutions may 
oUim indemnity if the stoppage turns out to be wrongful, 
but was not obviously so at the time(i-). In short, the 
proposition that there is no contribution between wrong- 
Lers must be understood to affect only those who atv 
Wrong-doers in the common sense of the jvord .w weU as 
L law. The wrong must be so manifest that tlie jierjon 
doing it could not at the time reasonably suppose that he 
'was acting under lawful authority. Or, to put it sum- 
marily, a wrong-doer by misadventure — including a 
person who has been led into unlawful acte by the other 
wrong-doers fraudulent misreprtsentation of the facts, 
and, being so misled, thought he was acting lawfully (j)- 
is entitled to indemnity from any person under whoso 
apparent authority he acted in good faith; a wilful or 
negligent (0 wrong-doer has no cluim to contribution or 
indemnity. There does not appear any reason why con- 
tribution should not be due in some cases without uny 
relation of agency and authority between tho parties. If 
several persons undertake in concert to oimUi nji obstruction 
to a supposed highway, having a reMonable claim of right 
and acting in good faith for the purpose of trying tlie 

507-.WS. The RPouml of tho flSMl P. 212, 61 L. J. P. 71, 
Sf^ms in point. But 1 no nut 
thinlt an agent could claim in- 
demnity for act!i wliich a rca.^on- 
nblo man in hii pin™ would know 
to be beyond the lawful power of 
the principal. Sec Indiiin Coii- 
tru.-t Act, ». 223. The pc. ulinr 
statutorv liability created bytli" 
Directors' Liability .Vet, IHflo, 
now Compaiiioi (ConBulidutiouj 
.\ct, 1908, s. 84, is qualilii'd by 
a ri^ht to recover contribution in 
all cases. 

action for indemnity may be 
cither deceit or warranty: see 4 
Bing. at p. 73, 2!) R. H. .508 - 

(r) BriU v, hliint (1H34) 2 
.\. i E. 57, 41 H. H. 381. See 
too Collim V. Kr«,„ (1S44) (Es. 
fh.) 5 «. n. at p. 83(1, 13 L. J. 
Q. II. 180. (i4 K. H. 6li3. 

(«) Burro. > v. yMorfcs [18991 

1 Q. B. 816, 68 L. J. IJ. B. 545. 

(() I am "not sure that authority 

fully cover« this, tliourfi Tli' 

EngHthmnn and The Auslralia 


ut'rf ":' " """' ■"" """ ""''' '''^'" •-"" ^ '"-'"- 

ta-oed, ,t «om, controrv to prinoipk that one of them 
.hould be compellable to p».v the whole damage, rd 
2^ w.tho„t any recour«, over to the other,,. 7„„„n„t 
find how., er, that »nv doei.ion ha. been piv.n on fa.1, 
of th,e k.nd: nor i, the question very likHv to .ri,o us 
the parfoa would generally provide for ,.xpc.n««bva sub- 
•oription fund or guaranty. 

It lu« been currently »,ud, sometin.e. laid down, and 

facU affording a cau«e of action in tort are such as to 
^ount to a felony, there is no c.v.l ren,edy a«ai„.,t th. 
felon («) tor the wrong, at all events before the crime has 
b^an prosecuted to conviction. And as, befom 1870 U 
a convicted felon's property was forfeited, there would at 
eommon Uw be no effectual remedy afterwards. S„ that 
the compendious form in which the rule was often stated, 
that the trespass was merged in the felony," was sub- 
stantiaUy if not technically e, rreet. But so much .loubt 
has been hrown upon the supposed rule in several modern 
oases that it seems if not altogether exploded, to be oulv 
awaiting a decisive abrogation. The result of the ca,..'s 
.n question is that, although it is difficult to denv that 
-me such ruk exists, the praise extent of the rule, I 
the reasons of policy on which it is founded, are uncer- 

C") It is settled tliat there is no 
rule to prevent tlie aui„|, „f „ 
per-on ivh„ ^,1. not party or 
privy to the felony. Stolen 
H'xd,, or their value, ,.,,., ran he 
recovered from an innoeent jios- 
■e.-«ir who has not hought in 
marliel overt, whrther the thief 
tins been pro»eiuted or not: 
"""* >■■ KeaHitf, (1834) 1 Binj;. 


rule of 
t rcRpiiMM 
in felony." 

ff- O. 198, 217, 2 CI. Ji I.-. 250 
37 H. li. If,-. While V .?,„./- 
tigu, (1845) 13 M. i W. 603 14 
r- J. Ex. 99, 67 li. R. 753. In 
these eases, intleed, the can,,. „f 
action is not tliooHenio it-elt, bi.t 
roraethins else «hi.h ie wr.)n'.fi,l 
because an oltenei. ha, be,.n eoni- 

(j:) 33 i 34 ^■iot. c. 23. 


tain, dnd it is not known what i« the proper mode of 
applying it. A. to the rule, the beat .upported version 
of it appeor. to be to thi. eBeot: Where the same facta 
amount to a felonv and are such a< in themselves would 
oonatitute a civil wrong, a cause of action for the civil 
wrong doe. arise. But the remedy is not avaiUblo for 
a p3r«.n who might have proaecuted the wrong-doer for 
the felonv, and bus failed to do so. The plaintiH ought 
to show "that the felon has actually been prosecuted to 
conviction (by whom it does not matter, nor whether it 
was for the siime specific oflonoe), or that pro««ution is 
imposaible (a. by the death of the felon or his immediate 
ewjape beyond the jurisdiction), or that he haa endeavoured 
to bring the offender to justice, and has failed without any 
fault of his own(v). 

Nokuo.,. It is admitted that when any of these conditions is 

"""■^ satisfied there is both a cause of action and a presently 

^™i7if available remedy. But if not, what then? It is said to 

«t^" be the duty of the person wronged to prosecute for the 

felonv before he brings a civil action; " Init by what 

means that duty is to be enforced, we are nowherc 

informed"(«). Its non-performance is not a dofemr 

which can be set up by pleading (o), nor is a statement 

of claim bad for showing on the face of it that the 

wrongful act was felonious {b). Neither can the judge 

nonsuit the pkintiff if this does not appear on ll.r 

but comes out in evidence at the trial (c 

(«) Blackburn J. ibid. 

(b) Roope V. h'Avitjdor (1H83') 
10 Q. B. D. 412, op. UMiW'l 
Imiirrinne Co. v. Smith (1881) li 
4. B. D. 661, 50 L. J. (i. B. 329. 

(f\ JVe'h v. Ai'ffiitiiK (laT'Jl 
[.. R. 7 (J. B.654, 41 L. J. ((. H 

(y) See the judgment of Bag- 
gmllay L. J. in ^* ?"'•''' *»" 
(1879) 10 Ch. Div. at p. 673. 
For the clifficultie.! «ec per Bram- 
well t. J., >l>. at p. 671. 

(z) Lush J., /ra'isv. .ibrukimt 
(1872) L. 11. 7 Q B. at p. 663. 


It has boen .uggcted that the Cm.rt might in a proper 
ca«, „„ tho ,.pphV„,i„„ of tho Crown or otherwW. 
exero.». ,t, .uaim.rv .j„ri«lietion t„ stay proceeding, in' 
^ecml oOonCd): Snt there i, „„ example of .hi.. 
Whatever may be the true nature and incident- of the 
duty of the wronged party ,o prosecute, it i, a personal 
one and does not extend to a tr«st«. in bankruptcy (e) 
nor, .t „ conceived, to execntor, in tho cas.., whore 
execnto™ can sue. On the whole there is apparent in 
quarter, of authority a stn.n,- though not unani- 
mous di.po«it.on to discredit the r„le a, a more tradition 
of text-wnters founded on ambiguous or n.isapprehende,! 
ca«», or on diet, which themselvo, wet^ open to the 
same objeet.on. (/). At tho same time it i, Ltain that 
the judges consulted by tho House of Lords in Marsh v 
Keating (s) thought such a rule existed, though it wa« 
not appUcable to the case in hand; and that in Ex parte 

306, diiwnting fn.m WV/oc* v. 
''oHthmfine (1863) 2 II . s f. Uti 
31 I.. J. Ex. 285, • very inde Ui.' 
'■iwe, but the nearest npproai-Ii to 
an authoritjr for thn,.iiii.nt 
ol tlie «uppo.ed rule in a cuurt of 
vominuD law. 

C'O Blackburn J., L. R. 7 y 
"■ at p. 859. In a Uter lri>h 
I'W, 9. V. S. (1882) 10 Co.,, 566, 
It was uid that, in a proper caae, 
the Oourl might slay the arlion 
"' lis own motion; and one mi-m- 
lier thuught the ease before them 
■' proper one, but the majority 
'liJ not. 

(•) Sx piirtc Ba'l U8T9) 10 
' h. U. 667, 18 L. J. Bk. .57. 

') See tho hlitoriial di«u.-»ion 
in flie judgment of m„-kburn .1 
'n "./;, ,. Abnh.i^,. L. ^ 7 


Q. B. .wo ,,,,. ^„j ^ 
Muule J. in ,y„,j ,. ^ 
(1813) 7 Seott N. H. 199, 307 a 
eoM, of alleged compounding of 
felony: " n ,.„„|j ^^ ^ ^ 
thing to »y that every man >■ 
bound to proseeute all the felonle. 
that eome to hi- knowledge; and 
I do not know why it I, the duty 
of tho iiarty who suffers by the 
felony to prosecute the felon 
">tl,or than that of any other 
penon: on the contrary, it i, a 
Christian duty to forgive „„,.•.; a„d I think ho does a 
very humane and charitable and 

(hristian-liko thing in abita; 
from prosecuting.'' 

i'J) 1 IJing- N'. C. 198, 217 ■> 
L'l. & V. 230, 286, .37 B, j{ ;,' 



ant as 

medy ii 

Act« not 

by local 


Elliott (A) it was eilectunlly applied to cxchid* a proof in 
bankruptcy . 

Lastly we have to see under wliat conditions there 
may be a remedy in an English court for an act in the 
nature of a tort committed in a pkce outside the terri- 
torial jurisdiction of the court. It is needless to state 
formaUy that no action can be maintained in respect ol' 
an act which is justified or excused according to both 
English and local law. Besides this obvious case, the 
following states of things are possible. 

1. The act may be such that, although it may In- 
wrongful by the local law. it wojild not be a. wrong if 
done in England. In this case nj) action lies in an 
English court. The court will not carry respect for ;i 
foreign mraicipal law so far as to "give a remedy in 
the shape of damages in respect of an act which, acoordinfr 
to its own principles, imposes no liability on the person 
from whom the damages are claimed " (J). 

It is generally held, however, in .\merica that iin 
action may be maintained in one State, if not contrarv 
to its own policy, for a wrong done in another an.l 
actionable there, evon if it would not be actionable hy 
the lex fori (fcl . 

2. The act, th,oiigh in itself it vtajUd. ht \ II t rMpi M . - I'v 
the law of Engliuid, may be iuntificO, Qr_ excused by tli- 
l^jjuJ law. Here also thi're is qjj. !■<""<= 'l.^' '" ^ Engli-li 
court(i). And it makes no diflorcnte whether the ad 


(A) 3 Mont. \ -V. 110 (1837). 

ft- (0 r4£jj(*-r/ (i8i>8) r.. B. 2 

p. C. 1!13, 2IH, 37 I... J. .Vilm. 
33: 771.. .1/. .l/ujr/i<.»i (1876) 1 
P. Div. 107. 

(A) See Amerinin note to Di'i-y 
im Coiitlict of Laws, p. 670, 1^1 

(.') mold's Cagf. Bt'td V. 7/""'- 
tieUl (1673-1) in P. C. and CI... 

^ fron. the Hr,t ju^tifiabk. bv the locaj law, or, cot 
moused by a of indemnit.v proceeding from 
P^HM^Syreim), where the defendant wa. Governor 

, an At of indemmty subsequently p.ssed by the colonij 

(Legislature was hold elleetual to prevent the defendant 

from be,ng Lable in ... aetion for assault and false 7m 

pr^nment brought in Engknd, But nothing less tZ 

fe /ou or the remedy in the loeal 

LTb. 7" """" "" ^"^ ■^■"^ °- »-'« would 

poea bly make „n exooption to tl, rule if it appeared that 
by the loeal b.w there wa» no remedy at aJl for a n.anif * 
wrong sueh as assault and battery committed without Z. 
P^.a just, eation orexcuse(o). For the purpose o tZ 
ule the loeal law ,s sufficiently ascertained by the deola a 


antf t h fl U ai^..tlia.,pUce whore it was done. I„ ,ucl, •! T™ 
^ '^U^J^ in England, without regard to ,, '- 
»atmaite.«f the parties (,), p„vided the cal of IJl 

'' br both 

3 Sivanat, (i()3-4, 19 J{. K. 255^ 
'rum Lord Nottiiigharaa JISS, ;' 

''») Ks. Ch. L. U. G Q. fl I 
« L. J. Q, B. 28 (1870). 

(1) .Vra« V. Seymour (1862) 
I-"- Oh. 1 n. s: c. 219, 32 ,^ / 

i;x. 61. 

P.— T. 

(PJ (Virr V. /^...ri, y,„„,, . 
[19»2] A. C. 176, 71 L. J. K II' 
«1 (.seizure of i,m„iti„„, „, ,,„^ 
.m,,„rleJ |,y Brili.h merc-l,a„t, i„ 
territorial water,, of Muscat) 
l?J I'er Cur.. T/,,. Hanr,j, \. 

R- 2 P. c. „t p. 2„o. ..^v,^;„^. 

(ul, „, resort), the foreign o„„u. 
try, tncluJci act, .-hi,!, „„ 
Pun.,l,„hl. though „„, aetio,,- 



ia-Bot oi a poiely local kind, such as trespass to land. 
This last qualiiicatior. was formerly enforced by the 
technical rules of venue, with the distinction thereby 
made between local and transitory actions: but the 
grounds were substantial and not technical, and when 
the Judicature Acts abolished the technical forms (r) they 
did not extend the jurisdiction of the Court to cases 
in which it had never been exercised . Tlio result of the 
contrary doctrine would be that the most complicated 
questions of local law might have to be dealt with here 
as matters of fact, not incidentally (as must now and 
then unavoidably happen in various cases), but as the 
very substance of the issues; besides which, the (Jourt 
would have no means of ensuring or supervising the 
execution of its judgments. 

Jadifnifnt We have stated the hiw for convenience in a series of 
il PAirtjiJ distinct propositions. But, considering the importance of 
T. Eyn. ()jp subject, it seems desirable also to reproduce the con- 
tinuous view of it given in the judgment of the Exchequer 
Chamber, delivered by Willes J. in Phlllipa v F.yrp. ;-- 

" Our courts are said to bo more open to admit actions 
founded upon foreign transactions than those of any 
other European country; but there are restrictions in 
respect of locality which exclude some foreign causes of 
action altogether, namely, those which would bo local if 
they arose in Engluid, such as trespass to land: Douh'nt 
V. Maitheivs ,s); and even with respect to those not 

able: Mnf/inrl:' v. Fmirt |1«971 
2 Q. B. 231, Ii3 L. .1. ij. 1). Mi, 
C. A. 

(r) JlrltUh Smith Ajncn t'o. 
?. ('amjicnhifi f'r M'/i;'nnhiqur 
[1893J A. C. 602, 63 L. J. Q. B. 
70. ■ 

(.) 4 T. U. S03, 2 B. U. ii» 
(17a2: no action here for tre.- 
[,as8 to land in Ciinadu): i.ji- 
proved in Britinh South .1fii-tt 
Co. V. Cmnptnliin df Mi\iiiii' 
ttiijue, last note. Tlie lo:'al cli-ir- 
acter of actions for trespass to 

''OCA LI IV OK WKO\(!s. 


to found a ^uiUntSnd i^. " *^'""''" ,:"'°' '" -"- 

.tei«t, the wrong must il 1 T'' ''' '■"'""''''• 

would Imve boon „ 7 n ' "■ "'""■'^'«- "'«t 't J A, A ( 

nave l«on uotionablc if committod m I.',. >i ^ J^ffi'U'nUj^ 

therefore, in T-Ae //aHe,, i-zw, , "'"•-" '" i-ugland; - ^. 

"ounced ag:,inst a su ii th U '";" ''""""'^ P'"" 
a liability bv the law of H T'^' '"""'''"^ "I""" 

Iho act of : p L w, 1^'"'" '"'■ ^""'»'°" '-'-^'J I'J 

by that l,uv to'ello ": "^T''" ''"' '■"-"'^""> 

being his agent hT:.;!" '"'' "'""'• "'''''""■■ - ""' 

thTk;. of the nlr I ° '^'° Ju^<tii;ablo(«) b> 

liani held tint a sei?,,,-,. ■ ,7"'" >■'•'" ^""' -^otti,,,,- 
Danish Uovernn:e:t :; :, t" • 7'"""™' ^^^ ""' 
oould not be questioned b I " " '"" "'"'''"• 

although the pll-ntir an F ,!?' """" '" '■^"''-". 
»izuro was in violation „f.?"' "'"'"'^' """ *''« 
and De„n,.,rk-r ^Hor ' ^ "''™" "''' »'>'""■■>' 

having, when i„ the smico of th! n'" ^^""""^ "^^i"" 
-Ptured in Portuguese w Tor an I, "7" ," ''""*""'' 
blockade, W.S held by the Conir„f ' "" '"■™'^'"= 

justified by thekwof P ► , """°" ^'^''^ "> I'"„r?;:j^2:':l'*^ nations, though h,s 
° P '"" *"» wntrary to English 

li"iJ i< inainloinoa 



iu Mio I'l 

Marh-tia Ad 

(') L. B. 2 p. c. 


in i^nif!and 

to tho 

(1895) l.M U. S. 1 _. 
intiquity of the riilo 


Im. 33 


193, 3? L. 

(") S,... J. 


'» Ed. I. ,|,„, 

f^eu tlio I'ase of 9 4- 

r'""l 2 Q. u, 231, 2 


(«■■>, 2nd od 

IIi»f. Ki 

in l'Mn-\i 

^1!^. Lmv, i. 44g 

(») 3 S«Mn»t. 
C'/) 3 .S« 

-«"> (1674). 

( = ) 2 m,w. X. c. 
■51") (1836]. 

O'll, 19 n. I;. 
'»1.42J(. I(. 




law, und subJDCtetl him to penalties under tho Foreign 
Enlistment Act. And in He;!, v. Lealei/ (a) an imprison- 
ment in Chili on board a British ship, lawful there, was 
held by Erie C. J., and the Court for Crown Cases 
Reserved, to be no ground for an indictment here, thore 
being no independent kw of this country making tho act 
wrongful or criminal. As to foreign liws affecting the 
liability of parties in respect of bygone transactions, the 
.law is clear that, if the foreign law touches only ihe 
'(remedy or procedure for enforcing tho obligation, as in the 
icase of an ordinarv statute of limitations, such law is no 
ibar to un action in this country; but if the foreign law 
extinguishes the right it is a bar in this country equally 
as if tho extinguishment had been by a release oE the 
party, or an aet of our own Legislature. This distinction 
is well illustrated on the one hand by Iluber\. SIciner (?)), 
where the French law of five years' prescription was hold 
by the Court of Common Pleas to bo no answer in this 
country to an action upon a French promissory note, 
because that law dealt only with procedure, and the time 
(£nd manner of suit {tempm et modum acUonis innH- 
tuendae), and did not affect to destroy the obligation of t h ■ 
contract (valorem contractus); and on the other hand by 
Potter V. Brmcn (c), where tho drawer of a bill at Balti- 
more upon Englard was held discharged from his liability 
for the non-acceptance of the bill hero by a oertific;itc 
in bankruptcy, under the law of the United States (it 
America, the Court of Queen's Bench adopting the 
general rule laid down by Lord Mansfield in Ballaiitim 
Iv. Goldirtfl (d), and ever since recognized, that, ' what is a 

(») 5 East 124, 1 Smith 351, 7 
K. B. «a3. 

(rf) Cooke'u Bankrupt Law, 
487; noted 5 II. R. at pp. bm, 

(,i) Hell (1. C. 220. 29 L. J. 
.M. C. 97 (1860). 

(6) 2 llinit. N. C. 202, 42 R. R. 


d^rged and avoided by th. law of e„o piaeo" .Wo t 
w- made, the aoocsorv righe of in oven c„„ 
open o the oroditor unque.tio„abl. Ml. to the ..old 
And by stnot of reaaoning, ^-hore an obligation 

U«es may possibly arise in which distinct and inde- 
pendent nghts or liabilities oi- defences are c"ld b, 
positive and specific hws „f this country m ^ot of 

be he Governors Act alicady discussed and dis ,o" dof 
applicable to the present ca«, " (.) . ' *^ 

The times in which actions of tort must bo brought are L™,.. 
fixed by the Statute of Limitation of James I. (21 jIT ^^ 
c. 16 us modified by l.ter enactments (/). X„ gerorL' ■°"""- 
pnoc^le ,s laid down, but actionable wrongs a., it 1^ 
.vided into three», with a dittcrent tc^rm of liiS 
7 ,*--<=''• These terms, and the cause, of ,ie on'o 
which hey apply, are as follows, the result bej^tl 

S tT h?! '" "'" "'"^ ^"''^ "' ">^' statute ,icS 
mg to the modern construction andpractioe — 

and all other common law,vrongs (including libel) 
except slander by words actionable per s. (g) and 
injuries to the person. 

*'""•'■ ^/™"---inJ"rie» to the person (including im- 
pnsonmont). ^ 

^^(•'I--n.6Q,B..tpp.28_ A„po„dixC. 

(«- the „...e ,..„,., o,s.^s:;:;;^'e:f- 





Two years : — Slnnder by words actiouable per $e. 

Suapcii- Persons who at the time of their acquiring a cause of 

Iwtutoby' action are infants, or lunatics (A), have the period of 
limitation reckoned against them only from the time of 
the disability ceasing; and if a defendant is beyond seas 
at the time of the right o£ action arising, the time runs 
against the plaintiff only from his return. No part of 
the United Kingdom or of the Channel Islands is doomed 
to be beyond seas for this purpose (i). Married women 
are no longer within this provision since the Married 
Women's Property Act of 1 883 (fc) . If one cause of 
disability supervenes on another unexpired one (a-s 
formerly where a woman married under age), the period 
of limitation probably runs only from the expiration of 
the latter disability (i). 

rom I WjijjgjlajBuge is the gist of the action, the time ruin 
""lonly from the actual happening of the damage (m). 
I In tiflsBT (lie statute runs from demand on and ro(u>al 


(AJ Ptaintifid im[)ris()nod or 
being beyond the seas hud the 
Banio ri;?ht liy the stattit" of 
Jame^ X., but this was abrogated 
by III k 20 Vict. c. 07 (the ilei- 
canti'e i-aw .Vnuiulment .\et, 
185(>), H. 10. Tlie existing law as 
to defendants beyond seas is the 
result of 1 »v ,') .\nne, i-. 3 [ul. 
16], 8. 19, as explained by 19 A: 
20 Vict. e. 97, ». 12. .\s to the 
retrospective offctt of s. 10, s'O 
Pardo V. Ilnnjhrm (18Ca) h. I!. 
4 Ch. 735, 39 L. .1. Ch. 170. 

(tj Si'C precLtling null'. 

i^k) See p. flO, above. 

(/) Cp. Borrowi V, Ellison 
(1371) L. It. 6 Jix. 12S, 10 L. J. 

Ex. 131 (on the Real I'ropi rty 
Limitation Act, 3 A; 4 Wm. IV. 
e. 27); but the language of the 
two statutes might be distin- 

(;») Jlf{ ckhoiite v. llon'oni 
(1801) 9 II. L. C. .503,Tl L, .1. 
Ij. 1). 181; Jlat'eiJ •"»"' Cdl.^-ry 
Co. \^JUtch'-n (1886) 11 s\|.i.. 
Ca. 127, 55 L. J. Q. II. ;<l'). 
nfflrming ». c. 14 ((. B. Uiv. 12j. 
The same principle ai>plics, of 
course, to spe^'ial periods of liuii- 
lation of attlons against pidilii; 
bodie* or ollieers: see Cruiiih ■ v. 
IfalUend Load /loiird [1691 | 1 
Q. B. 503. 60 L. J. Q. a. 392. 


|by the defendant, whether the defendant wor« the flr.t 
•converter of the plaintiff', goods or not („). 

years l,m,tat,on by the Civil Procedure Act, 1833 (o) ■■»™""2 
Ihe eon,p„„,,,on given b^ the Director. LiabUity A^ 
ISaO, u not a penalty within the Act (p) . 

protected by general enactments tl,at actions uRainst "'m^"*^ 
must be brought within six months of the act eom- 
extending to aU nets done in execution or intended 

z^^Tii'mr '1 "''- '"''' """- - "i 

nties. The iact that such an act is ' quasi-commercial " 
does not exclude the operation of the sLute ( " 

The Act also mates aspecially f„v„uiable provision for 

(») lliller V. Jlel! ^isaij 1 
«• B. 468, 60 L. J. (J. Ji, 4U4 
C. A. 

fo)3IH Vfm. IV. c. 42, s. 3. 
(p) Thornton v. y.„,i t7„„. 
mo-ri. [laoo] 1 Ch. 718, 69 L. J 
Ch. 337, C. A. The Dir<.et„r»' 
Liability Act, 1890, i» rep,aled 
-lud replacd l,y the Companies 
(tunsolidation) Act, 190s, g. 84. 
(?) 11 S 12 Viot. c. 44, ,. S; 
this ». was rep., us being no 
longer needed, by S. 1,, li Vct 
(') 24 (leo. II. ,.. u, s. B. 
(•) PnbUo Anthoritios. Profec- 
'■on Act, 1893, 56 i .",7 Vict. 
«■ <il. As to what Jiinds of act 
•re included, (IreenxM v 
?"«"" [1900J 1 y. Ji. 533 5, 
I- J Q B. 161, C. A. .-Vs to 

the date from which time runs, 
I'olleii V. Fordh„m [1904J 2 K 
«• 343, 73 L. J. K. a. 687. A 
company earning profit is not 
within the Act, though its opera- 
uom may be of public utility and 
authorized by statute: A.-a. i. 
Vnrnalc Pirr fl9(J0j 1 Ch 749" 
tiO L. J. Ch. 331. Hut a county 
council owning tramways is- 
l-'rker V. L. V. c. 1 1994J j 
K. B. 51)1, 73 U J. li. B. Ul. 
A» to municipal corporations, 

f!°Jl':'J- "'"'''' ^'■'•"""t'on 
IIDUO) A. C. 133, (i9 h. J. Ch 
311; /,,.,„„■„*,,„,,,.„,■. 4.„,„, 
flmrf/of,/ f;,„7„„,,„„„ jii,02, ^ 
Ch. 585, 71 L. J.Ch. 744, c A • 
J-9l» V. !Sou(hcnd-oH.Sm Cor- 
pomWm 119051 2 K. 1! I 74 
L. J. K. B. 484, C. A. 







o( con* 

kkmki>i»:h for tortk. 

the ooita of Buccossf ul defendants (<) . This do«(i not apply 
to appeals or interlocutory proceedings (a) . 

The enforcement of statutory duties is often made 
subject, by the same Acta which create the duties, to a 
short period of limitation. For the most part these 
provisions do not really belong to our subject, but to 
various particular branches of public law. The existence 
of such provisions in Lord Campbell's Act and the 
Employers' Liability .Act has already been noticed. 

The operation of the Statute of Limitation is further 
subject to the exception of concealed fraud, derived from 
the doctrine and pructice of the Court of Chaiioery, which, 
whether it thought itself bound by the terms of tho 
statute, or only acted in analogy to it (x), considerably 
modified its literal application. Where a wrong-doer 
fraudulently concejls his own wrong, the period of limita- 
tion runs only from the time when the plaintill discovers 
the truth, or with reasonable diligence would discover it. 
Such is now the rule of the Supreme Court in every branch 
of it and in all causes (y). 

{t) See as to this BoHock v. 
Ramaey Urban DUtricl Couueil 
[1900] 2 Q. B. 616, 09 L. J- 
Q. B. 945, C. A. ; the provuion 
haa led to very HpMulativo at- 
tempta tu bring eaaes within the 
Act, see Hottworlhy Vrb'm Couu- 
cU y. B. Rural Council [1907] 2 
Ch. 62, 76 L. J. Ch. 389, where 
the defendani couni-il was not 
charged with having done any- 
thing unlawful at all. It does 
not destroy the judge'a regular 
duoretionary power. Dismibsal 
of an action by oonoent is equiva- 
lent for thia purpose to a " judg- 
ment obtained " by the defen- 
dant*, and carries the statutory 

solicitor and client costs: S/taiv 
V. HertfvnIMre C. 0. [18M] J 
Q. B 282, 68 L. J. Q. H. 867, 
C. A Xt is otherwise where the 
plaintiff accepts money puid into 
Court on one issue, and in effect 
discontinues the action on other 
issues: Smith v. Xitrthtea'k 
Rural Sitlriet Council [1902] 1 
Ch. 197, 71 L. J. Ch. 8. 

(«) Field'-n'n Citar aiiil Jeie- 
miah Ambler f Sana' Cmc, 
note («), above. 

(») See 9 Q. B. Div. 68, }icr 
Brett L. J. 

(y) Oibbt V. Guild (1882) 9 
a. B. Div. 59, 51 L. J. «. 15. 
313, which makes the equitable 


, A plaintiff may not set up by way of amendment claims 
in respect of causes of action which are barred by the 
.tatute at the date of amendment, though they were not 
ISO at the date of the original writ («). 

It has often been remarked that, as matter of policy 
the periods of limitation fixed by the statute of James are 
unreasonably long for modern usage; but modern legis- 
lation has done nothing beyond removing some of the 
privileged disabilities, und attaching special short jwiods 
of limitation to some special statutory rights The 
Statutes of Limitation ought to be systcmatieallv revised 
as a whole. 


We have now reviewed the general principles which Co.ol„. 
are common to the whole kw of Torts as to liability as fc°', 
to exceptions from liability, and as to remedies. I„ the ^ 
following part of this work we have to do with the several 
durtinct kinds of actiomible wrongs, and the law peculiarly 
applicable to each of them. 

doctrine of general applioatiun 
without regard to the question 
whtther before the Judioature 
Acta the Court of Chancery would 

or would not liavi. had jurisdic- 
tion in the caae. 

(s) Veldon v. .V.rf (1B87) 19 
Q. B, Div. 394. 5S L. .1 Q B 




1— Assault and Battery. 

Secukity for the pereon is among the first conditions of 
civilized life. The law therefore protects us, not only 
against actual hurt and violence, but against every kind 
of bodily interference and restraint not justified or excused 
by allowed cause, and against the present apprehension 
of any of these things. The application of unlawful 
force to another constitutes the wrong called battery: 
an action which puts another in instant fear of unlawful 
force, though no force bo actually applied, is the wrong 
called assault. These wrongs are likewise indictable 
offences, and under modern statutes can bo dealt with 
by magistrates in the way of summary jurisdictiou, 
which is the kind of redress most in use. Most of tlio 
learning of assault and battery, considered as civil 
injuries, turns on the determination of the occasions 
and purposes by which the use of force is justiliiil. 
The elementary notions are so well settled as to require 
little illustration. 



for the kw cmnot draw tl,. ii„o between diler™ "^'« 
flm „„d lowct »tage of it; „very ,„an', per.on bein. 

u n !„:: "y r"'" "^'"^ ^ ''^''" '» -'•'"« wit* 

onl, whether the force applied U, sufHoient in decree to 
I'koJy to cau,e ,t. Some intrrforcne^ with the person 
n-u t,„^ „„,j ,„„„^,„^ ^^_^ ^^^^^^ ^^l^.^_ 
Sp. ..„g .„ a n.,„-, face is ™„™ offe„,i,e than a bl„rj,d 

the human body .tself or to anything in contact with if 
n.w.,.W with the hand or anythii held in it,rt::; 

"o^'L!:!; :::;:' rrr*' "^^i" "'^'^"^ -i- 

non«t„nti 1 ""'"^'^J' «e word 18 in modern usaRo "«•""• 

instantly made to .ndude batt.ry. Xo reason app^. 
for ma,nt.,„,„g u. distinction of .„.,„, ,, „„ „X„^ 
praefoe: „„d i„ the draft Cr,„ Code of WO 

-.ulf.dehberatelv„...d,n the larger popular jnl. 
, An assault ,s„ runs the proposed deHnition) ■ is , W ^ . 
K .nU>nt.onally .pp,y,„„ ,„,, ,, ^^^ , ^ "- -' *^S.Pf, 

d-eetly or ind:re.tly, or attetnptin^ or thr.,ten.„,;;L ; 

"Wer aulhoritv, soe lit,-, nrc,. 
lOS li, a wril f„r tlirowing 
■ quendam li.|u„rcm rali.lun, ' un 
tl.e plaintiff: •■ ..a™, orat l,ui„,. 

modi praecedcntis ItrexU; q„„. 

Jam mulier proierit ™prr aliam 

mulioreni ydrumollim, jBod „„. 

glii-f dioitur „,,rfe quod crat 

nimis ealidum." 

.-- .«.,-«te v.Ttirnfr 

(170a) c Mod. 119, and l)i|,elow 
'■• C. 218. 

(4) Blaikst. Conim. iii. 120. 

(<■) II. V. r„tr,„nrlh, 6 M,«l. 

(i) /■!(««« V. Il,,r„r (IS38) 3 
N • J: P. 564 (throwing water at 
« person i= a,s,.u|i- if i,,e w.let 
'"llJ o» him as intended, it ii bat- 



act or gesture to Hppiy •ucli force ^ th ej>ornon of another, 
if the person waking tho thrcit^ cauie-i tht* other to 
believe (c) upou roasonabtf groimdH that lie htw i)rps«nt 
nbility to effert hi« purpose "(/). 

Examples of acts which amount t« ussaiiitinc; u man are 
tho following: * Striking at him with or without ii weapon, 
or presenting a gun at him at a distance to which the gun 
will carry, or pointing a pitchfork at him, standing within 
the reach of it, or holding up one's tist at him, or drawing 
a sword nnd waving it in a menacing manner" (g). The 
lessencc of tlie wrong is putting a miin in present fear 
of violence, so that any act fitted to have that nffeft on a 
[reasonuble man may bo an aBs*ault, though tliere is no real 
Ipresent ability to do the harm threatened. Thus it may 
be an assault to present an unloaded fire-arm (A), or oven, 
it is apprehended^ anything that Looks like u lirc-arm. So 
if a man is advancing upon iinother with apparent intent 
to strike him, and is stopped by a third person before ho is 

(p) Uue might expeot " b«Iiuvc:« 
or cauMftt," io. ; but tliia would 
be an exteiiNion of the law. Xo 
awautt U rommittvd by |iri-scDt- 
ing a icun at a man who lannot 
see it, any more than by forming 
an intention to t>hoot at Iiim. 

(/) Oiminat Code (Indictable 
Otfeneex) Bill, «. 203. Sir Jaraea 
Stephen'.-* deHiiition iu hi^ Digeit 
(art. ^41) is more elaboratp; and 
the Indian Penal Code bus un 
extremely minute definition of 
" using force to another *\e. 349). 
As Sir Jame-4 Stephen remarliB, if 
legislutorM begin defining in this 
way it in hard to nee what they 
can oasumo to be known. 

(_ff) Bucon Abr. " Aseault and 
Buttery,'" A; llawkina P. C. i. 

(A) R. V. Jumes (1B44) 1 C. L 
K. 530, U apparently to the con- 
trary. Tindal C. J. held that a 
man could not be convicted of an 
attempt to dbicharge a loaded 
flre-arm under a vrtminal statute, 
nor even of an aMauit, if the arm 
wan tan by defective priming) 
not in a state capable of being 
diacliargod; but this opinion (alau 
held by Lord Abinger, Blakr v. 
Bmmyl (1H40) 9 V. ii P. at 
p, 62S> ia againitt that of Parke 
It. in R. V. St. deorg,' (IHIO) 9 
C. &; P. 483. 493, which on this 
point would almoBt certainly be 
followed at tliia day. The case is 
overruled on another point, 
purely on the words of the 
statute, and not here material, in 
R. s. ffuckii-orth LiS92] 2 Q. E. 
88, 6B L. T, 302. 


aotuull,, within rtiiking diit<u„.c. he ban ,«ininilto.l an 
ttwnult (,). Acl» iiipnble in theniwlvMuf beinir iniiMault 
may on the other hiin<l \h- vxi,\amo\ ur qunliaLd by wordi 
or oircunutanoes oontnidicting what niigh' ii;er\.i»e be 
inferred from them. A man put his hi 
and «iiid, ' It it were not aasizo timu. i 
•uch language from you"; this was 
the words exoludcd iin intention of n i , ' : 


"' his swrrj 
!||.lir: , '-1 



'iinx. 1,1- 

' U , ml 

■ii'u .1, 


Hostile or unlawful iulention is 
an indictuble a«sault; and siuli i > i 

the like as In'longs to the ordinary o 

IS free from th« use of unnecessary fort 
offence nor wrong. 'If two or more me..i, . , :. :„irrov 
j passage, and without any violence or design of harm the 
one touches the other gently, it will bo no battery ' (j!). 
The same mh holds of a crowd of people going into a 
theatre or the liko(m). Such accidents arc^ treated as 
inevitable, and create no right of action oven for nominal 
damages. In other ca^.s an intentional touching is 
justiiied by the common usage of civil intercours^, ,« 
when a man gently lays his hand on another to attract 
attention. But tiie use of needloes force for this 
burpose, though it does not seem to entail criminal 
jUability where no actual hurt is done, probably makis 
the act civilly wrongful (n) . 

(•) SUiihttu V. Myirt (1830; 

i U. Si P. 319, 34 H. 11. 811; 

Hi|[e!ow, L. C. 217. .V lorRe 

proportion of the uuthoritlea on 

tliu aubject are Nini Prim cases 

li-p. Iiowever Jte'id \. toker 

'1853) 13 C. U. s.iu, 22 

1^. J. C. P. 201, 93 H. R. 769): 
w«! the sub-title of .\snult under 
Criminal Law (iv. H50, nqq.) 
-Tri tjie titio Tre.*pa-a (.\iv. 224 — 
234) in the Digest of Kn(rli«h 

Case Ijiw, ed. Mows. Some of 
the ilictn, as uii([ht Im oxpopleil, 
»ro in i-onflict. 

(*) TuitmilU v. Uniage (1669) 
1 Mod. 3. 

(0 Holt ('. J., (■.*■ V. TiiruFr, 
6 .Mod. 1(9. 

(»>) Sleph. Dig. Cr. I^„^ „,(, 
241, illustrations. 

(n) Cou-ard v. Baddetev (1859) 
1 H. ic -N. 478, 28 L. J. El. 260, 
118 H. R. 562. 



Mere passive obstruction is not an assault, as where 
a miin by standing in a doorway prevents another from 
coming in (o). 

Words cannot of themselves iimount to an assault under 
I any circumstances, though there is evideno;^ of an oarlinr 
contrary opinion: 

I* Fur Meade'it riiiti' proven, or my Report'** in fault, 
That hiiigiujir can't Im rwltoued an a-wault *' (/»). 

There is little direct authority on the point, but no doubt 
is possible as to the niodorn law. 

Consent, or in the common phrase "Ifiavo and licence, ' 
will justify raany acts which would otlierwise Im 
assaults (^), striking in sport for example; or even, if 
coupled with reasonable cause, wounding and other acts 
of a dangerous kind, as in the practice of sur-jery. But 
consent will not make acts lawful -vhich arc a brcacii 
of the peacp or otherwise criminal, i.i chcmselves, or uu- 
warranta-bly dangerous. To t!io authorities already 
cited (r) under the head of General Exceptions wo may 
add Hawkins' paa-agruph on the matter. 

•' It seems to b*; the better opinion that a man is in no 

(«> '•'»'•" V- Ifufi^f (1843) 1 
<J. & K. 257. liut it seeraa the 
other, if ho ia i^oiw^ wlierc he ha^ 
ii ri^ht to iro, U ju^itirtoil in push- 
ing him atiilf, tlioui^'h nor in 
striking or otlior violence out-idc 
tlie aifual exercise of his right: 
He<> pp. 178, 179, above. 

(p) The CircuiloorH, by John 
Leyce4or Adolphus (the ^up- 
po.-oi «])euker is Sir (Ircgi ry 
Lewin). L. Q. H. \.2:il; Mr..dr'a 
und Belt's ra., 1 Lewiu C <'- 
184; "no ti-ords ur )*ii>'jiiin are 
equivalent to an assault." per 
Holroyd J. Cp. Hawkins 1'. C. 

i. 110. That it vat formerly heM 
otherwise, ^ea 27 Asa. 134, pi. !1, 
17 KJ. IV. 3, pi. 2, 36 lien. VI. 
20 A. pi. 8. 

(7) Under the old system of 
pleading this was not a, mutter of 
spot'tal justificati^tn, but cvidriici' 
under the general iii:uc-, an a'H:iuIi 
by consent being a contraJi<tio[i 
in terms: Christnphcrxon v. lln-' 
(,1848) 11 Q. II. 473, 17 L. .1. 
Q. I(. lUa, 7d U. 11. 454. l!iM 
this has lonj,' ceased to bo of ;iiiy 
Importance in Kngland. 

( , ) I'. Hi4, above. 


providorl fhnf „„ "iu-ping t&o poaco), 

oew and p jr^' ^ I ,h r.:™;'' "^ r 

dofonoo nmst not bo moro than -: ™ "'"' '" 

'hat which provoked itT^ 5 . r^^'T'^^' »'"> 
" 't la:,!. It ,8 obviou8, howovcr, thnt 


W HawkiM, p. c. f. 484. The 
R«ma„ La„. „„t „.^„ ,^^j|^^^ 

° »""■""(?!"» contrate "j-loriuo 
7'"?, '■' "'">"*'"," D. 9. 2, od. 1 

,('1 Similarly „|,ere coiuenl i, 
8"0" <o on unreasonably da„- 
l""" oper»»„„ „, ,,e.t„,„nt bv 

onewbo relic „„ the pri,on,.r', 
'l '■• " ''""■' "oi ox'-usc liim from 
11.0 (-uill of ma„,laiiglitor ir 
death ensne,: ^o»„„„„„.„,,j , 
'"•'■'•" flMI) 138 Jfa-,. lii.5 Im' 
f") Blacksf. Coram, iii. '4 
(X) ff,^r^ V. n„/„r (1835) 1 
J*- * ^f. atp. 470. 



the matter is of much greater importance in cTiminal than 
in civil law (y). 

M«,«. I MfiMoe without awault is in some easea actionable 
*^ll. But this is on the ground of its causing o. certain specia 
■^ Ikind of damage; and then the person menaced need 

not be the person who suffers damage. In fact the old 
authorities are all, or nearly all, an intimidation of a 
man's servants or tenants whereby he loses their sorv.oe 
or dues. Therefore, though under the okl forms of aotiou 
this wrong was of the genus with assault and 
battery we shall find it more conveniont to consider it 
under' another he,id. Verbal threats of personal violence 
are not, oa such, a ground of civil action at all. If a 
man is thereby put in reasonable bodily foar he has h.. 
remedy, but not a civil one, namely by security of th,. 

Where an assault is complained of before ju»ti,..s 
under 24 & 23 Vict. c. 100, and the complaint has b-on 
di^issed (after an actual hearing on the merits) ; . 
either for want of proof, or on the ground that tlio, 
assault or battery was -'justified or so trifling as nni 
to merit any punishment," or the defendant has h,,.,, 
convicted, and paid tlie fine or suffered the sentence, u» 

in ITS whi^t 
a bar to 

(y) See St«plifn'» Him'st of 
the Criminal i-ow, «rt. 'iOI>, 
and cp. Criminal Cod.' liiH. 
SB. 65—571 and tor full 
disi-usaion Dicoy. Law of tlic> 
Constitution, 7Ui od. appK. 
note iv. p. 489. Thire are man}- 
modern Amiriian d.'c'iaione, 
chiefly in the Sonlhorn and Wes- 
tern States. A ca.«e iu the V. D. 
Ed. II. 381, "Trwpn-" (the 

placita are not numbered in thi* 
volume) BUgpteste that ua latu a.- 
13ia " Son assault denie.*ne " was 
not a good plea; but the rfpicial 
verdict as reported said only tiiat 
the defendant was pursued by tho 
plaintiff, not tliat he wa< beat. n. 
and it may have been Iho.'^riit 
insufficient on tliat gr.>urid. 

(;) ;/.•..; V. A'n" (1890) '-' 
li. U. I). 61)9,.')!) I.. .1. IJ. I- '■" 


'ispect ot the same assault (a) 
11.— Fa/«e Imprisonment. 

of dote„t,o„ and tr: ;:::":::' ir ^^^^ ^^ ^""" 

m«nt; which, thouirl, „„„ ,,"^""S^ "' "fa; imprison- 

—thco. : dSt^"-^ r-^^ -"^ -■"'. " 

element; anO. if "■>„„ ,, , ^ ot a necessarv 

-he hero o^Th '0^^!^ ""' "^ ''"'°" '-'''> " f- 
-hat there may T a^ efft: T ''" '"^ '^'^^ "<"- 

an .mprison^ent. \skoZ7itZ!:T' "' "" """" " 
-n " private house, or ,n the stn't "'""'"°" ''"^^ " 
.'-inin, one in the put" ^^ "[ f ^'^ 
" n-n .s Uwfully .n a house "^s mn ' "''''" 

prevent him from leavinc- H.„ "npnsonmcnt to 

Pe detainer, howeve Lst T" T *'"" '" ''' ^''^• 


;■ ^; '^^ ". decido, that the Art 

"'?''"'"»'■ "ctfan, by a hu8. 
,"'"* ""• ■°""'-- tor coiwequontUl 
J"»«Ke:tho words of the A,t„„ 
'".""', "■"x^." tut ihoy arc 
the earhcr Act, 10 *: n Vict. 

(») Black.t. Comm. lii. 127 

-» K B. 858. ev^i, h, i, 

"iwarf, which Z. ia ,e.dy and 
»■"■"? to do, Z. d«„ J f°^ 

r,"'::!- '■'"'"""'^ ""''"". 



^n imprisonment to obstruct a mans pa»a^ i" one 
direction only. " A prison may have its boundary larg« 
or narrow, invisible or tangible, actual or real or .ndeed 
in conception only, it may in itself be moveable or fixed; 
but a boundary it must have, and from that bound-7 
the party imprisoned must be prevented from eseapmg: 
he must be prevented from leaving that place vr.thm the 
limit of which the party imprisoned could he confined 
Otherwise every obstruction of the exercise of a r.ght ot 
way mav be treated as an imprisonment (d) . A man 
;is not imprisoned who has an escape open to lum(e); 
that is, wo apprehend, a means of escape which a man 
of ordinary ability can use without peril of life or limb. 
The verge of a eUB, or the foot of an apparently 
impracticable wall of rock, would in law be a sufficient 
boundary, though peradventure not sufficient in fact to 
i-estrain an expert diver or mountaineer. So much as to 
what amounts to an imprisonment. 
,^». When an action for false imprisonment is brought and 
''"'°' . defended, the real question in dispute is mostly, thougli 
t^^ tot always, whether the imprisonment was justified. 
""*• One could not account for nil possible justifications 
except by a full enumeration of all the causes for which 
one man may lawfully put constraint on the person o£ 
another: an undertaking not within our purpose m this 
work We have considered, under the head of General 
Exceptions (/), the principles on which persons acting in 
the exercise of spex^ial duties and authorities arc entitled 
to absolute or qualified immunity. With regard to the 

M) Bird V. Jonri (1845) 7 
a. B. 742, 15 L. J. «■ B. 82, 
68 B. B. 664, per Coljridgc J. 

(,) William. J., >"■ To tl.e 
Mine effect Palleson J.; ' Impri- 

uuuafSt is .-.,■.• loUl. restraint 
at_tIi»..Jil)Iitiy fit tlio jicrson ■■ 
Lord Dcnraan C. J. dia en'ed. 

(/) Cli. IV., pp. 118, 121 I'll: 



power, of aZLT^ ^T" ''"•"•""'"» ^^^een the 

-arrant arrest on rl M '^^ ""^' ^■'"""" ^'^J'^-^ 

though a for:;!^ t:r'™ °'.''"""^' ^™" 'B^ 

^ private person . ar:!: nj^lt: ~':'' """T ^ 

,- o„o,ed offender, ,„„. fl'.oj no „1 th^tTr^^' 
ireasonablo srounris nf ■ , ' "" "'"' 

»ctua,„ bee?: LL "r'Th^ r ^ '''""■^- '^ 
I" «^tutor, constable ,aW„, ^r ""''"r '^ 

constable,.. bythocornmonLwld^r", T"" " 
lowers for dealing with , ^''''.'""' "1*""^ stotutory 

aealmg with various particular offences (fc). 

l.hat he ^PecLlircollr Tatl ^d'a"'''^ ""' '-'" 
officer who finds «. ,.„.= . , "'^'' '"'* " superior 

-stable under hit ^Z 2",:': ^^l"^- "-^ "^ 
-stody, is liable to an a tT^n "f ,h "T""'"' "^^ 

"nlawful «) Y„. ^ / • ""' "'''*?'"''' "'■™t was 

— done upon his SLr::::;::— 



(y) Stephen, Di^. Crim. Proo 
'■ 12, 1 Hist. Cr. Law, 193: and 
«oo 7/»„ V. Ward (1858) 3 ir i 

^^ (*) Thia applies only („ felony: 
the law I re., common law] does 
■>ol Mca,e constable, f„r arresi- 
|"fr per«,n« on the re..on«blo 
Wiof that they have committed a 
mw'cmeanour: " see G„«„ , 
';''■»""• 0859) 4 II, i N. 265' 
-SL. J. Ei. 131, 117 H jj ^jj 

, '" '^'V'"'". 1 III.*. Cr. Law, 
'", 199. A. to the common la* 

Q 2 

power. o( constable, and other, 
to arrejt fur preaervatio.T of the 
P-™, which aeem not free from 

S; r jf '"' " *"'""°» 

JI- R- 722, liigelow L. c. 257 
per Parke B. 
f*; Stephen, 1 Hist. Cr. Law 

(0 Oriffln V. c„,„,„„, „„^ 


2 W. ,11. 806 (attorney ,u4o„^ 
and procuring ejecution of void 



.n officer of tho law, if they «e < not as merely 
mu.i.e«i«l .cf, bat in tbo exercise of tho officer's proper 
authority or discretion. Hather .roubk.ome doubta may 
„i« in particuUr cases as to the quality of the act 
complained of, whether in this sense ,l.«ret.onary, or 
o.ini^ri«l only. The distinction between a servant 
a.d an "inde,,-udent contractor" (») with regard to the 
employer's responsibility is in «.me me«ure analogous. 
>, party who sets the law in motion without making its 
act hi» own is not noce>«arily free from liability. He may 
be liable for malicious prosecution (of which here- 
after) (o); but he cannot be sued for f. ' imprisonment 
or in a court which 1ms not jurisdiction over cases of 
malicious prosecution. "The distinction between false 
imprisinment and malicious prosecution is well illustrated 
by the ca»e where, parties being before a magistrate, one 
Jakes " charge against another, whereupon the magistrat. 
orders the person charged to bo taken into custody and 
detained until the matter can be investigated. The party 
making the charge is not liable to an action for faUe im- 
prisonment. bes»»o Iw doe* »<" '"t ^ ministerial officer m 
motion, but a judicial officer, llio opinion and judgmenl 
of a iudicial officer are interposed between the charg.. 
and the imprisonment " (p). Where an officer has taken 
a supposed offender into custody of his own motion, a 
person Tvho at his request signs the charge-sheet does not 

(«) r. 81, above. 
(0) Sm Fitijokn V. llackiiulcr 
(18»1> Ex. Ch. 9 C. B. N. S. 
505, 30 L. J. C. I'. 257, 127 B. K. 

ip) WillM J., AuttinyjJLo'o- 
ling C1870) L. K. 6 C. P. nt 
p 540; '»'«•< V- Sntalliiiood 
(1838) 3 M. k W. 418. 49 11. R- 
eeS; Higelow L. C. 237 ; nor does 

an action for malicious prosecu- 
tion lie where the judicial officer 
has held on a true iatcmcnt ot 
tho facts that the.-j ia reasonable 
cause: J/o/ie v. .'. .-r«i (188li) 1 1 
Q. B. D. 338, 55 L. J. M. I'. 
146; /.ea V. Chnrringh-n tlssy) 
23 a, B. Div. 45, 272, 58 I.. ■! 
Q, B. 461. 


the co„.... hi:i:::,""tir:r r '^ -"^^-^ 

to tako a person ;nf„ . '""-"ibcTO an offioor consents 

sheet must ansu^/^^ ^ '^;, ^^ ''^-^ *o charge- 
officer (r). ""' ™P"'<»mont as well as the 

remands him, damages 0^1!. ^ ""ffi^trato who 

in an action for iLil" ''"" "^^'"^' ">" ?«>««"'» 
- arresting not f;"^; "P^'-'^r"' ""'^ ^» *ho trespass 
magistrate W ' "'" "'"'""'' -'"«'' " 'he act o/tho 

common sense of the terms. £totZ^ T " ""■ *"°"- 
;^for the judge and not for th^ nrW fnot^T '' 
because "no definite rule can b« I ,, 1.' °^ ^''^ 

-rcise of the judge's iudg^l^o/rV"" '" *"*' 
^ trr "" .eh as 4milialt„?; -r ; 

»8R-R.573,f„l,„,edbyC a' 

iTU.''- "■ ^"' "= ^- ^• 

regular «„ur,f, hough <ho j„d„. 
: "' " °""«""" »' "'Mo on 

'9 i- J. Q. Jl. ,u. Ono ce 

."■"P- '". '""n, not good a„. 

«; f- R. «r; and Or^^t: 
" •"'!/, last note. 

IT 1 Z '• "'"•*• C1861) 7 
126 n. R. 329. '*'■ 

r. E^ 4?t"7- '""'""-'' (■"«> 

2aT 1-. *''"'^"''^'>'°- 
™y at p. 540. 




of case, which are disposed o£ by a judge .itUng alone; 
but this Bort of dincrotion does not And a natural place in 
a .yatem which aasigns the decision of fact, to the jury 
and the determination of the Uw to the judge. Tho 
anomalous rharacter of tho rule haa been moto than 
once poi.>r, d out and regretted by the highest judicial 
authority (. The truth seems to bo that tho question 
was form* . ! .-'d to be one of law, and has for some time 

lieen ton-) "» *» ^"""^ ""^ "' *""'' "^^ ""' °'^^° *"" 

never bee. formally recognized. The only thing which 

can be certainly affirmed in general terms about the 

meaning of " reusonablc cause" in this connexion is that 

pn tho one hand a belief honestly entertained is not 

tf it«!l£ enough (a); on tho other hand, a man is not 

fcound to wait until ho is in possession of such evidence 

C would bo admissible and sufficient for prosecuting tho 

offence to conviction, or oren of tho best evidonoo which 

he might obtain by further inquiry. " It does not follow 

\that because it would be very rcasonabU, to make furth.i- 

inquiry, it is not vensonabh' to act without doing so" (J). 

It is obvious, aUo, that the existence or non-existence of 

reasonable cause must be judged, not by the event, but by 

the party's moans of knowledge at the time. 

Although tho judge ought not to leave tho whole q. i^^^- 
tiou of reasonable cause to the jury, thcio scorns to bo no 

l^i) Lord Owpbell in Brongh- 
(o,. V. JackiOH (1BS2) 18 Q. B 
378, 888, 21 L. J. Q. B. 268, 
Urd Hatherley, Lord Woitbaty, 
and Lord Colonwy (M familiar 
with proceduro in which then" 
wan no jury at aU) in Liitrr v. 
i>,rry».», L. «• * H. L. 831, 
838, S8«. 

(y) Bntughtan V. Jackttttt 
(1862) 18 Q. B. 378, 21 L. J. 
Q. B. 266: the defendant must 

hIxiw " facta whicli would croaif ii 
reasonable suspicion in the mind 
of a reasonable man," per Lord 
Campbell C J. 

^») Dramwell B., Petrt/wit i 
lUler 0868) L. K. 3 Ex. at 
(>. 202, approved by I.'"' 
llatherley, t. o. nom. Lister v. 
P,r,,».«», L. R. 4 H. L. «t 
p. 633. Compare the aulhoritiis 
on malicioua prosecution, pp- 3'iJ 
—328, below. 

husband of .ho «.,o., f Kl 'r''^' , "^^'"^ ^ "=" 
personal injury th™ P , " "'''"^'""' " '"" '<«» - 

law is coated by ZZtt'"':^' ""* '" ™'"^-" 
purpose, as belcnZ" ^hc 1 "'^''"'''' '"' -""> 


•hero „,ay bo diiHculty i„ fixinl h t,' !! ' "' ""'"" = 
■«ph«ro of domestic roLin f "'"'"''^ ''■'"'«' 'he 

■^amo rule should «tend J '^"'- ^''" "^o 

-hild, or servant an .in ""' "™"^ ''''- "> « -i^^, 
Mueneo by loss of the T " " P"""™"'" ™--- 

■^^Pected Th, , if ::"','■ " ""'•"• '^ "-'"""y '" ho 

pH.-aiand^::;:::::^;:rv;:tr:L^"^^°^ .round ra:Xt::L:.;.V''-'^ "e . 
i» oquallv nliifn fl, f '^cmpiaij damages. It 

™ fa-fts rCo^r™' T"^'^'" '^ """^'^'- - 

ha>o no cud re.nody against the 

C") II. Stephc, on jr„|i,.i„„, p„,„,,„|„„^ 

rh vii. 



aeducer, though the parent or master may: no civil 
remedy, -we lay, for other remedies have existed and exist. 
She cannot complain of that which took place by her own 
consent. Any different rule would be an anomaly. 
Positive legislation might introduce it on grounds of 
moral expediency; the courto, which have the power and 
the duty of applying known principles to new cases, but 
cannot abrogate or modify the principles themselves, arc 
unable to take any such stop. 

of tha 


There seems, in short, no reason why this class of 
wrongs should not be treated by the common law in 
a fairly simple and rational manner, and with results 
generally not much unlike those we actually find, only 
free from the anomalies and injustice which flow from 
disguising real analogies under transparent but cum- 
brous fictions. But as matter of history (and pretty 
modern history) the development of the law has been 
strangely halting and one-sided. Starting from the 
particular case of a hired servant, the authoritiee have 
dealt with other relations, not by openly treating them as 
analogous in principle, but by importing into them the 
fiction of actual service; with the result that in the class of 
cases most prominent in modern practice, namely, octions 
brought by a parent (or person in loco parentis) for tho 
seduction of a daughter, the test of tho plaintiff's right has 
come to be, not whether he has been injured as the head 
of a fmuiy, but whether ho can make out a constructive 
" loss of service "(b). 

(0) The italament here wm ap- omiM, though tho amendmcnls ol 

proved by FiliGibboa L. J. in the 19th century in the law of 

Murmi/ V. FUsgerald [1906] 2 evidence have removed some of 

I. B. 254, 265. Christian'! note the griovancee mentioned, 
on Bladutoae iii. 143 is still not 


"d perhaps y„„„^,*hiUj,oW . ''"'"'' " *■"'• 
"l" lay for wronpTdone to r„ ■• r'""" »^''™P'»» 

e former or tho aorvico, of the ul^ S T""^ "' 
°J P'<"«'"'» wa, p«r quod comortiS ^""^"'^ 

S-oh a cauae of action wnZTd 7/- " T"'"" '''»"''- 

«-» h«ab«„d ™i,ht aoZTriTjtr ■''''■'''' 
"•"ant in h;, „„„ J '^'f^ of the wife, or tho 

"-dioaaro ■■divorsiaV,pooS a-T^r '"rr"' '•" ""> 
» boat, tho master ahouVnt K ^ ^' " ">? «^"ant 

thereof ho losoa tho aervi Jof h' ^ """ ''^ "-"" 
h nnacU for ever, amal, Cto' ^Z""' '"' ''" -""' 
'"0 roaaon of tho differeooo f t^ t° "" """°'- '""' 
"ny damage ly the pcra„„„, ^ ™' ''^."■°-'o^ haa „ot 
by reaaon of a per „w „:, '"^ "^ '"^ '""a-t, but 
-"""'V; 80 that tho ori.i;al !;,""■ ""^ '"■'*""»' <*^- 

-"-e, ia the cauao of hi^ aTuo; .'k " '"" °' ''" 
/?«=ator or kaa, if tho maator d 1 ' ""= •»"«"• 

'"•» -"ant. ho al^U Lt ht^ ""' '"" "•» -"^00 of 

-'eapp,ieatothebLi„::;:t'™"W. The same ' 
-'f«. provided it bo -'ZyZ ""^'"^"""-^ of a ,nana 
''-band ia deprived fi: ^rr/'"" '""""^ '"o 
aaiatanceof hiswifo"(/). ^ "'" "ompany „nd 



*0. Mil 

W F. -v. B. 88 o, 90 n 9, 
W- 1832J. "° 

OT BlackM. Coram, iii. ^o. 


Muorocorv hsoiution tist chait 



I Ik 

m m m 


^F. 1653 East Mam SKrnt 

ffjS Rochester. Ne» fork U609 

'.=S (716) *a2 - 0;X>- Pnone 

^S (71G) 288 - 5989 - Fa> 


«< Cnininal 




Wdnst an adulterer the husband had an aetion at 

I— ^t;L-i:'::.-r2r:^r 

■^ Tnst her .viU Aetions for eriminal conversation were 
T I d„ England on the establishment of the Divoree 
i:r n 857 buTl^«es ean bo eUin>ed on the same 
prTneipL in proceeding, under the then 

'trpllS' these actions .ere always or almost always 
insttoted^vith a view to obtaining a divorce bjr pr.v to 
Tcrof Parliament; the rules of the House of Lords (.r 
t I „l™e such Bills were brought in) requmng th. 
; cant tl ::t lined both the verdict of a Jury |n 
an action, and a sentence of separation a n.Ma et toro 
in the Ecclesiastical Court. 

An action also lay for enticing away a ^--tjtl-t 

■ 1.;^ ,^^ her to depart voluntarily from tno 

is, procuring him "^^ J ° \„^„i ,y harbouring a 

>--' 0' "f' IbTful Quite modern examples are 
Labourers («), is doubttul. SJuuu 

not wanting (fc). 

(„) ColoridRC J. in J-mil'!/ ^^■ 
C,. (1853) 22 L. J- «• =■ »' 
„ 478 Case would al»o lio, and 
L common form oE daclaratioa 
„M for .omo time conaidcred to 
b, rather ca,o than tr«pa>.: 
UacfadTen y- OUva„t (1805) 6 
East 387. Sco note (i) below. 
IJ,) 20 & 21 Vict. 0. 85, B». 33, 

(0 23 Edw. in. (AD. 1349): 
this statute, passed in conse- 
quence of the Blaek Death, mark* 
a great crisis in the history o 
English agriculture and land 
tenure. .Vs to its bearing on tlif 

(*) n«nU,, V. Cummm,' 
(1847) 5 C. B. 247, 17 L. J. 

c. r. 81. 


Much Uter the experiment «u, tried witlx sueocss of 
a husband bringing a like action "against such as 
persuado and entice the ,vife to live sc.parato from him 
nithout a sufficient eause " (?) . 

Still later the action for enticing away a servant, per 
quod sermtmm amkit, was turned to the purpose for 
which alon,. it may ,»o,w be sai<I to survive, that of 
punishing seducers; for the latitude allowed in esti- 
mating damages makes the procee<Hng in substxneo 
almost u penal one (»?) . 


\^ In this kind of action it is not necessary to prove the 


)t.\ "xistenoo of a binding contract of service between ihe 
; plaintiff and the person seduced or enticed awav The 
Vj4 hresence or absence of srfuction in the common sense 
^whether the defendant "dohauchd the jkintiffs 

doeiclMl as late as 183!) (without 
Rivins any olhor reason than the 
cointant practice) that Irenpuj. 
or case might be used at Iho 
pleader's option: Chnmbrrlmn v. 
Ilazelnood (1839) 5 M. * W 
515, 9 L. J. Ex. 87. The only 
conclusion which can or need at 
this day he drawn from such fluc- 
tuations is that the old system of 
picadinir did not succeed in its 
professed object of maintaimnR 
clear logical distinctions lielwecn 
different causes of action. 

(0 Blackst. Comni. iii. 139; 
n'immorc V. Gmenhimk (1745) 
VViiles S77, Bigclow L. C. 328. 
It was objected that there was no 
precedent of any such action. 

<»i) The text from this point 
to p. 239 below is adopted by 
I'itzliihbon L. J. in Mmraij v. 
h'idaemtd [1906] 2 I. R. 254 

matter in hand, see the dissenting 
judgment of Coleridge J. i„ 
tumltii V. &> (1853) 2 E. i 1) 
216, 22 L. J. Q. B. 463, 480 
95 n. li. 501. The action was 
generally on the case, but it 
might be trespass: o.,., Tii!- 
lidge ,v. »,. J„ (1769J 3 ^yu,. 
18,. an action for seduc:ng 
the plaintiff's daughter, when, 
the declaration was in trespass 
'■; it armi,. How tj,;, ^„ ^^^ 
■icoounted for on principle I 
know not, short of regarding the 
-crvant as a garni chattel: the 
■lifflcnlly was felt by Sir James 
llansflcld, Woodirard \. H'allou 
<I807) 2 B. i p. x. B. „g^ 
m. For a time it seemed tho 
helter opinion, however, that 
trespass was the only proper 
form; ibid., micham v. Bo,«l 
"814) 2 II. i S. 436. see 14 
II- H. 836 „. It was formally 

for seduc- 
tion in 
proof or 
tion of 


idaughtor, " in tho forensic phrase) makes no diflcrenco 
lin this respect; it is not a necessary part of tho cause 
of action, but only a circumstance of aggravation («). 
Whether that clement bo present or absent, proof of a 
de facto relation of service is enough; niiiJ jUm fraud 
whereby tho servant is induced to absent himself or 
herself affords a ground of action, " when once thi' 
relation of master and servant at the time of tho acts 
complained of is established " (o) . 

This applies even to an actual contract of hiring ma(' 
by tho defendant with a female servant whom lie ius 
seduced, if it is found as a fact that tho hiring was :i 
merely colourable one, undertaken with a view to the 
seduction which f el i- (p). And a de /acJo service iV 
not tho less recogni..od because a third party may havi' 
a paramount claim: a married woman living apart from 
her husband in her father's house may bo her father - 
servant, even though that rektion might bo dcterminoil 
at the will of the husband (3). Some evidence of such 
a relation there must be, but very little will servo. -V 
grown-up daughter keeping a separate establishment 
cannot be deemed her father's servant (r); nor can a 
daughter, whether of full age or not, who at tho time ol' 

(o) i't!0>!j_v. Ifalton (1867) 
L. R. 2 C. P. 615, 36 L. J. 0. P. 
307, where it was unaucccsafully 
contended that tho action for se- 
ducing a daughter with loss of 
service as the consequence, and 
for enticing away a servant, were 
distinct species; and tliat to sus- 
tain an action for " enticing 
away " atone, a binding contract 
of service must be proved. 
(0) Willea J., L. B. 2 C. P. 

(p) Speight v. Ollviera (lPl9t 
2 Stark. 493, 20 B. B. 728, citul 
with approval by Montagtiu 
Smith J., L. B. 2 C. P. 624. 

(7) Jlarper v. Luglcm (18271 
V B. is C. 387, 31 K. B. 23li. 
This was long before courts of 
law did or could recognize any 
capacity of contracting in a mar- 
ried woman. 

(r) Manlei/ v. Field (1859) 7 
C. B. N. S. 96, 29 L.. J. C. P. 79. 


"ny other person i„ loco r^'r^ «"h "P^ent. or 
famityof whichtha ptoxf^ I' "^ " -^"'''- "^ the 
'o support the inierone "hit the 1 '"'''"'""^^'"'"^'' 
-"•ant, dote„oi„ahlo at t l uf 'T "' ""^''"""l 
between them '■ «) .^^. ' ,, '"V ""^^^ P^^tj, c:si8U 
tome from sorv ce^th ,„ .7° ""''''"''*'"' «'""-? 
determined. o^aylCStT ''""" ^^'^^"'^ '^ l-' 
of her father («) • tI , ,^; T"'"'''"^'' ---» 

in the daytime is witi, ''""»'"''• ^-"P^ed olsowhero 
-i.t, and does as ^t^^ ZT'^ \'''' *'°""''^-- ^- "> 
home in the evonirg £) "^ "■'"" ^''° ^«"- 

; Some loss of service. Of possibilitv „f 

M.- a. oonse^nent on^Cj^^^r ^; • ! t — 


p / ^- "• 653; even if by tho 

rhompKn V. j;„„ (,85jj ' 

«• K- 451; Zferfye, y J. 

[i";)L. B. 7 :^,. ,J;z 

'ly'om, [1901] 2 K. B. 722 

United ttate. it is g.„„e,ally h„u 
thai actual service with a third 
person i,„„ bar to the action, „„. 
le., there is a binding c„„,„„t 
» ..eludes the parents' right 
-...., that service .ilher rf, /„«„ 

'f "" (Sup- Court Jf. y 18121 


(0 Bramwell B. i„ J7»„y„„ 

aolT "°°'°- J^^-'hout 
•quas -parental relation a sister 
"•y be the servant of her 

brother, and this though thev are 
co-owners of, he ho„fe:'tl"; 
V- J^.(--J.™w [1908J 2 J J, 251, 

«-■ «. 3 Q. B. 599 37 t ,' 
Q. B. 257. •'• 

W Littledalo J cito,! „.r,i 

Q- B. 602. '' 

c/'']n^';'j- '"''«* »«03) Ex 


of young 


theory, the ground of action (j); but when that condition 
is onoc aatisHed, the damages that may be given arc by no 
means limited to an amount commensurate with the actual 
loss of service proved or inferred. The awarding of 
exemplary damages is indeed rather encouraged than 
otherwise (a). It is immaterial whether the plaintiff bo 
a parent or kinsman, or a stranger in bbod who hos 
adopted the person seduced (6). 

On the same principle or fiction of law a parent caji 
8uo in his own name for any injury done to a child living 
under his care and control, provided the child is old 
enough to be capable of rendering service; otherwise not, 
for •' the gist of the action depends upon the capacity of 
the child to perform acts of service" (c). 

Cpriciou, The capricious working of the action for seduction in 
»P«r"M° modern practice has often been the subject of censure. 
" ° '■ Thus, Serjeant Manning wrote sixty-eight years ago; "the 
quasi fiction of servitium am:iit affords protection to the 
rich man whose daughter occasionally makes his tea, but 
leaves without redress the poor man -vlios<» child is sonl 
unprotected toearn her bread amox.gst strangers "(d). All 
devices for obtaining what is virtuaUy a new remedy by 

(i) OrinnM v. WelU (1841) 7 
M. t Or. 1033, 14 L. J. C. P. 
19, 66 R. It. 835; Eager v. 
Orimwmd (1847) 1 2x. 61, 16 
L. J. Ex. 236, 74 H. B. 584, 
where the declaration was framed 
In trespass, it would seem pur- 
posely on the chance of the court 
holding that the per quod ser- 
vitium timisit could be dispensed 

(a) See Terrt/ v. Hutchimon, 
note (ii)> last P»e[^- 

(&) Iru:in V. Ilearman (1809) 
11 East 23, 10 U. II. 423. 

(c) Hall V. llollitnder (182.5) 
4 B. & C. 660, 2S B. H. 437. 
But this case does not show that, 
if a jury chose to find that a 
very young child was capable of 
service, their verdict would Ijc 

(d) Note to Orimell v. Well; 
7 Man. & Gr. at p. 1044, 6li 
B. B. at p. 843. 


•training oW forms and ideas beyond their original inten- 
tion are liable to this kind of inconvenience. It 'laa been 
truly said (e) that the rnforeement of a substantially just 
«laim "ought not to depend upon a mere fiction over 
which the courts possess no control." Wo have already 
pointed out the bolder course which r -Vht have been taken 
without doing violence to any logo inciple. Now it is 
too late to go back upon the ease .d legislation would 
also bo difficult and troublesome, „ot so much from the 
nature of the subject in itself as from tho variety of 
irrelevant matters that would probably be imported into 
any discussion of it at large (/). 


It would be merely curious, and hardly profitable in c„„,i™„. 
any just proportion to tho labour, to inquire how far t"Z'' 
the fiction of constructive service is borne out by tho old ^^J-"" 
kw of the action for beating or carrying awav a servant °^ 
tarly ,n tho loth century we find a dictum that if a man 
serves me, and stays with me at his own will, I shall 
have an action for beating him, on tho ground of tho 
loss of his service (ff); but this is reported with a 
quaere. A generation later (h) wo find Newton C J 
saying that a relation of service between father and son 
-annot be presumed: -for he may serve where it pleascth 
him, and I cannot constrain him to serve without his good 
wiU:" this must apply only to a son of full age, but as 
to that ease Newton's opinion is express that some positive 
evidence of service, beyond living with the parent as a 
member of the household, is required to support an action 
Unless tho case of a daughter can be distinguished, the 

(«) Starkie's note to Speight 
V. Otmera (1819) 2 Stork. 496, 
20 B. B. 730. . 

(/) Sec note (»i), p. 235, above. 

(?) 11 Hen. IV. fo. 1—2, pi. 2, 
per Hul8 J. (A.D. 1410). 

(A) 22 Hen. VI. 31 (j.d. 1443). 


tioD of 


modern authorities do not agree with this. But the same 
Year Book boars them out (as noted by WiUes J.) (») m 
holding that a binding contract of service need not bo 
shown. Indeed, it was bettor merely to allege tho 
service as a fact (i« 8ervitio suo exMentem cepit), for an 
action under tho Statute of Labourers would not lie whcro 
there was a special contract varying from tho retamcr 
contemplated by the statute, and amounting to matter of 
covenant (fe). 

A similar cause of action, but not quite the same, was 
recognized by tho mediaval common law whcro a man's 
servants or tenants at wiU (?) were compelled by force or 
menace to depart from their servioo or tenure. " There 
is another writ of trespass," writes Fitzherbert, "against 
those who Ue near tho plaintiB's house, and will not suffer 
his servants to go into the house, nor tho servants who 
are in the house to come out thereof" (m). Examples of 
this kind are not uncommon down to the sixteenth century 
or even later; we Hnd in the pleadings considerable variety 
of circumstance, which may be taken as expansion or 

(i) L. B. 2 C. P. 621-2; and 
see Marline: v. Gerber (1841) 5 
Man. S Gr. 88, 60 R. R. 466. 

(t) 22 Hen. VI. 32 6, per Cm - 
(Newton C. J. ; Fulthorpe, Aacua 
or Ayscoghe, Portington JJ.); 
P. N. B. 168 F. 

(0 If the tenancy were not at 
will, the departure would be a 
breach of contract; this intro- 
duces a new element of difficulty, 
never eipresily faced by our 
Gourta before Lumley i. Gyn, of 
which more eUewhere. 

(m) F. N. B. 87 N.; and leo 

the form of the writ there. It 
seems therefore that " picketing," 
so soon as it exceeds the bounds 
of persuasion and becomes physi- 
cal intimidation, is at common 
law a trespass against the em- 
ployer. Tho modern cases of 
injunction, Lyotia v. Wilkin^ 
[1899] 1 Ch. 2S5, 68 L. J. Ch. 
146, C. A., and one or two others, 
are grounded not on tho common 
law but on the commission of 
statutory offences under the Con- 
spiracy and Protection of I'ro- 
perty Act, 1875. 

speoiflcation of tho „l!„ **' 

Jt scorns reasonublo on .1 
«n action (which in ' """*''•>■ "' "««<= cases th.f , 

h" customers; f„r it i, ° '7'""""^ ^-^ d^'vin,- awav *"■ 
P-ncip,e, wh, tho n.,ato !;,:::;■ " ■"■'■ ''""'"^d 

•"'" tonant. at „.ill " ,1„ , '. 
'«™<'n law .„, ' 'r*'":' «' ■> 

*'"-«PwS „rzr 
''arret v. ra«/,ir c » J"''e3, 

I'.— T. 

JOdgnicnt, «8„ that , ^•>' 

••^W skc dMl with il ^! ' ""' 
b«„,„„, him" si"""'- ""J- 

(1595) 104 ; ,; *•"'■"■ "■•«>■. 

»=7fdw.iv.2rri.a, """"■ 


who b««k or are '"PP^^^ '^^^ „thor«i« obnoxiou. t» 
the uuion or ^^^''"^^ ^^^t in r»pect ot .«ch 
it, and action, have ^» J"^ House of Lord, and 
proceeding., and »"»««1J^\^^ ^ will be better 
L Court of Appoal- «'^^^^,„„„j ^„„g. 
dealt with later among »•"»«? j t^oir import- 
.ffect a man', f »«'''-" .7„tf:„itantial grievance 
anoe and difficulty »°"'\'"7,i„ie„ce either u«>d or 
being independent of any bodjy J- ^^.^ ^^^^ _^^^ ^^„, 

r::trTfXirJnot Checked at an »rUer 



IZ'ZT "^ '"'"'"" "" '"' '<»' P''"^"' to good ni™ 
may bo doaror than Wo itsolf. Thu, it i» needful for 

that tho law should protoot tho reputation ^ well „« 
the person of the citizen, to our law »omo kind o 
deWfon are the subject of criminal pro. JZ a. 
o^ public order, or being offon'ivo to p^^'bir 
d^ncy or morahty. We are not hero con^rned'w^S^ 

and tho r ght to redrosa m a civil action: and we may 
Wore leave aside aU queationa exclusively proLHo 


way'rZfh'" ""r"''"" ""^ '^ ■"'""'"-' -'tor by 
Fof thl " "^ ""^ °^ """"^ <" 'l' «q»ivalont 

S t flf'^r " """' *" '''=^'' ""'' ^'Snificanl gestures 
(as tho anger-hu,g„age of the deaf and dumb) a^ in the 
me ca« audible words; and there is no doubUha 
d, pnnting, and engraving, and every other uL 
o^„ent vsiblo symbols to convey distinct idl 
«= .n the same case with writing. The .^rm slander 

I frr:"^'" "■« '"'™^- ^^-^ "^ utterances. , it 
to the latter (6). Using we terms "written" Z 



and libel 

(«) Such a> the deaniUon of 
'iMphemoM libel, and the 
ground, on which it i, p„„ij,. 

R 2 

(») ««»«, whether defumntory 
matter recorded on a phonognipii 
■fonld be a libel or only a potcn- 
tial slander. 


".poken" in an extcndnd sonHO, fo includo tho anolo- 
Kous .a.™ ju»t mentioned, wo may say that sUndor » 
a .poken and libel i» & written defamation. The law 
has inado a great difference bctwcort tho two. Libel « 
jan offence us weU a. a wrong, but slander is a civil 
•wrong only (c). Written utteranws are, in the abecnoe 
of special ground of justification or excuse, wrongful as 
against any person whom they tend to bring into hatred, 
contempt, or ridicule. Spoken words are actionable only 
when special dr.mage can be proved to have been their 
proximate consequence, or when they convey impubitions 
of certain kinds. 

No branch of the hw has boon nioro fertile of litiga- 
tion than this (whether plaintiffs bo more moved by a 
keen si^nse of honour, or by the delight of carrying cm 
personol controversies under the protection and with the 
solemnities of civil justice), nor has any been more per- 
plexed with minute and barren distinctions. This latter 
remark opplies especially to the law of slander; for th(- 
law of libel, os a civil cause of action, is indeed overgrown 
with a gi=at moss of detail, but is in the main sulHcientl.v 
rational. In a work like the present it is not possible to 
give moi-e than an outline of the subject. Those «lm 
desire full information will linrt it in Mr. Blake Odgers 
e:.collent and exhaustive monograph (d) . We shall, a.s 
a rule, confine our authorities and illustrations to recent 

meifftrntitm in 30 Aas. 177, pi. 19, 
where the defendant only madn 
matlera worse by alleginfr that 
the plointitf was''d 
by the Pope. 

(d) A Digest of the Law "f 
Libel and Slander, Sr. By W. 
Blake Odgers, London, 5th ed. 

(c) ficimilalum innyiMKom was 
an exception to this. It depended 
on early statutes which, after 
beinB long obsolete in practice, 
were repealed by the 8. L. B. 
Act, 1887. See Blake Odgon. 
Digeet of the Law of Libel and 
Slander, 74. There is a euriom 
nth cent, case of icandalum 



i- -Slander. 

wn-,!. I • , ** ^""ow-oJ from tho uttomnco of tho "■*"*» <• 

words oompiamod of, und al«o in ft„ t >■ ""■>"• 

WlK>™ tho word, ol,V,„UHly imp,,,,. „, „^^. J . 

>V hero they .™p„,„ having a contagious ,li J„ ihi,,,, /• ^"^A 
wouH oau. ti,o pe„on ,.vi„g U to bo o.e.ud.dfl'.'j;^^ 

VVhoro tk.y convey a ehurgo of ,.nia„,.s, ,lis|,„n..„, f^7^^^^ 
or .no„,„po,onc„ in an olfico of ,,ro/it, p,.„f..,ion, J 
rado. ,n short, who,, they ,„a„ifo,„v L.X t„ „,,, 
dico a man -n his calling ' ' 

Spoken words which afford a cause of action w.tho.u 
proof of specal d„„,ago a«, said to bo actiona' o ,„ ,, 
1^ theory that their tendency to inju, ./pL ,: 
tiffs reputafon is so manifest that the law .Is not 
« evdeneo of their having actually in l. 
There .s much cause however to deem this and other li^: 
reasons g.ven m our modern books mere aft-.r-thoughts 
devsed to justify the result., of historical acciden a t „ : 

IdToTd" ' V"^™' r""'"'-"' "' '^''^"■■'" '"»• 'h^ " 

need not dwell upon this example of it (/). 

(<■) A» whoro tho plaintiff in n jr: i. ■ r 
— PMOtiff „ B. Fisher, M, Jj,„ Quart, ],^^.^ 

158, trarc. f l,c <li4inr(iu„ to " tl.,- 

adaptati„n by tho Star Chainbr,. 

»' tho later Roman !a»- „r 

IvMlut lammm." 800. toe, 

"The EnglUh Law of Uefanm-' 

ion," by Mr. Franic Carr, L. Q 
H. xviii. 255, 3S8, and"lIi,tory 
»f tho Law of Defamation,' i,v 
Mr. Van \oaht<..n VooUer, Sel..,-t 
"«ays in Anglo-Amoriran IIi»- 
tory, iii. 446, boinsT a critical 
•tndy down to 1903. Tho Ro- 
manist inllurnco soom. (fon^rallv 

■ —^ ftutmia 19 

charged with having brought a 
blackmailing action: .l/o,*, ,. 
Kamuel [1904] 2 K. D. 287 73 
L. J. K. B. 587, C. A. 

(/) See Blake Odgera, pp. 2— 
4. and 6 Amcr. Law Rev. 693 
It »com> odd that the law should 
presume damage to a man from 
printed matter in a newspaper 
which, it may be, none of hi, ac- 
quaintances are likely to read 
•ad refuse to presume it from tho 
direct oral communication of tho 
"me matter to tlio persona moet 
l^' y to act upoa it. Ur. Joreph 







4lf "jjrMHrt 




No such distinctions exist in the coso of libel: it is 
enough to make a written statement prima jack Ubelloas 
tliat it is injurious to the character or credit (domestic, 
public, or professional) of the person concerning whom it 
is uttered, or in any way tends to cause men to shun his 
society, or to bring liim into hatred, contempt, or ridicule. 
When wo call a statement prima facie libellous, wo do not 
moan that the person making it is necessarily a wrong- 
door, but that ho will bo so held unless the statement is 
found to be within some recognized ground of justifloation 
or excuse. 

Such are the rules as to the actionable quality of words, 
if that be a correct expression. The authorities by which 
they are iUustratcd, and on which they ultimately rest, are 
to a great extent antiquated or trivial (g); the rules them- 
selves are well settled in modem practice. 

Where "special damage" is the ground of action, wo 
have to do with principles already considered in a former 
chaptor (A): namely, the damage must be in a legal sense 
the natural and probable result of the words complained 
of. It haa been said that it must also be " the legal and 
natural consequence of the words spoken" in this sense, 
that if A. 8p«aks words in disparagement of B. which arc 
not-actionable per se, by reason of which speech. C. does 
something to B.'s disadvantage that is itself wrongful iis 
against B. (such as dismissing B. from his service in 
breach of a subsisting contract), B.,has na_J»mcdy 
against A., but only against C. (i). But this doctrine is 
Icontraiy to principle: the question is not whether T. s 

(y) The old abridpncnts, e.g. 
Rolle, !ub tit. .Vction «ur Ciuo, 
l»ur ParoUs, abound in examples 
many of them Bufflcicntly gro- 
teaqno. A select group of caaes 

is reported by Coke, 4 Rep. 12 * 
—20 4. 

(A) Pp. 36 st/it., above. 

(i) ricmi V. Wilcockt (1806) 8 
Eait 1, 9 R. B. 361. 



,act was lawful or unlawful, b^ whether it might have ^ ^^ 

jlwen in fact reasonahlv ovr.o,.f«j t. i,. . .1 ifiUf (Mt^^^jyU/ 

heen in f«jt reasonably expected to result from the *^'*" 
^original act of A. And, though not dir«otIy overruled, '' ^^, " 
It has been disapproved by so much and such weighty / 

uuthority that wo may say it is not law (fe). There is 
authority for the proposition that where spoken words, 
flefamatory but not actionable in themselves, imi followed 
Jliy special damage, the cause of action is not tho original 
Ispeaking, but tho damage itself (?). This docs notion, 
to affect tho general test of liability. Either way the 
j speaker wiU bo liable if the damage is an intended or 
notuial consequence of his words, otherwise not. 

It is settled however that no cause of action is afforded Kepeti. 
by special damage arising merely from tho voluntary ^^^ 
repetition of spoken words by some hearer who was not '"*• 
under a legal or moral duty to repeat them. Such a con- 
sequence is deemed too remote (/«)■ But if tho Hrst 
speaker authorized the repetition of what he said, or 
(it seems) spoke to or in tho hearing of some one who 
m the performance of a legal, ofHcial, or mord duty ought 
to repeat it, he will Iw liable for the consequences (»;. 

Losing the general good opinion of one's neighbours, SpeoW 
\eomorHum. vicmonmi as the phrase goes, is not of itself l"™"?*" 
special damage. A loss of some material advantage ^i^' 
• must be shown . Defamatory words not actionable per se ImT'"' 

(*) Lynch V. Kliiaht (1861) 9 
11. L. C. 577. See iioles to 
I'iart V. Wilmeki, in 2 Sm. L. C. 

(/) Maulo J. ex rtttal. Bram- 
woll L. J., 7 Q. B. D. 437. 

^m) Parkim v. Scott (1862) 1 
11 4 C. 153, 31 L. J. El. 331 
(wife repeated to her Iiuaband 
grmn language nscj to Iienelf, 

wherefore the husband wa.i so 
much hurt that ho kft her) . 

(») Blake Odgrn, 414. Jlidmg 
V. Umilh (1876) 1 Ex. D. 91, 45 
L. J. Ex. 281, must bo taken not 
to interfere with this distinction, 
»e per C. A. in Jlatcliffe v. 
Emm [1892] 2 Q. B. 624, 534, 
61 I.. J. Q. B. 635. 


tions of 


wore spoken of a member of a reUgious society who by 
reason thereof was excluded from membership: there 
was not any aUegation or proof that such member- 
ship carried with it n» of right any definite temporal 
advantage. It was held that no loss appeared beyond 
that of consortiim vkinorum, and therefore there was no 
ground of action (o). Yet the loss of consortiim, as 
Ibetween husband and wife, is a special damage of which 
'the law will take notice (p), and so is the loss of the 
Voluntary hospitality of friends, this last on the ground 
ihat a dinner at a friend's house and at his expense is a 
thing of some temporal value (9). Actual membership 
of a club is perhaps a thing of temporal value for this 
purpose, hut the mere chance of fcing elected is not: so 
that an action will not lie for speaking disparaging words 
of a candidate for a club, by means whereof the majority 
of the elub decline to alter the rules in a manner whidi 
would l)e favourable to his election. " Tlie„risk ot 
temporal loss is not the same as temporal loss"(r). 
(Trouble of mind caused by defamatory words is not suffi- 
cient special damage, and illness consequent upon such 
troublo is too remote. " Bodily pain or suffering cannot 
be soid to be the natural result in all persons " (a). 

As to the several classes of spoken words that may 
be actionable without special damage: words sued on as 
imputing crime must amount to a charge of some offenc.' 
which, if proved against the party to whom it is imputed. 
would expose him to imprisonment or other corpora' 


(o) Roberts V. Roitrt-ts (1864) 
5B.&S.-384,33L. J. Q. B. 249. 

(,) LyfiA'uJiniSlit (1861) 9 
H. L. C. 577. 

(f) Haviea v. Solomon (1871) 
L. R. 7 Q. B. 112, 41 L. J. Q. B. 


{r) ChamberiaiH y.;:...,Soi/^ 

(1883) 11 Q. n. Div. 407; per 
Bowen L. J. at p. 416, 52 I,. .T. 
Q. B. 277. The damage was alsiv 
held too remote. 

(.) AUlop y. AUaop (1860) .') 
H. & N. 534, 29 L. J. Kx. SI.'!. 
120 R. R. 712. 


penalty (not merely to a fine in the first instance, with 
possible imprisonmeLt in default of payment) («). The 
offence need not be specified with legal precision, indeed 
it need not bo specified at all if the words impute felony 
generally. .But if particulars are given thoy must 1* 
legally consistent with the offence imputed. It is not 
actionable per se to say of a man that he stole the parish 
bell-ropes when he was churchwarden, for the legal pro- 
perty is vested in him ex offieh («); it might be 
to sa3 thttt he fraudulently converted them to his own use. 
The practical inference seems to be that minute and 
^copious vituperation is safer than terms of general 
reproaoli, such as "thief," inasmuch as a lavman who 
enters on details will prob.ibly make some "impossible 

It is not a libel as against a corporation (though it may 
be as ugainst individual members or oilieers) to charge the 
body as a whole with an offence which a corporate'body 
cannot commit (x). 

False accusation of immorality or disreputable conduct other 
not puuisliable by a temporal court is at common law not Sto"' 

liim (o an infamous punisliinent : 

(0 This i.^ tiio true distinction: 
it matters not wlit'thcr tlie offence 
be indictalde or punishable by a 
court of siiiiimarj' juri'dicfion: 
Wvhh V. ncjvttn ri883) II Q. B. 
D. 609, 52 L. J. Q, B. 544; nor 
whether the offender U liable to 
aummary arrest: IfeHuig v. Mit- 
chell [1910] 1 K. B. 609, 79 
L. J. K. B. 270. In the United 
State.! it is generoliy held, but 
with variations in several States, 
that surh worda are actionable 
when the offence wliich they 
charge renders the party liable to 
an indictment for a crime involv- 
ing moral turpitude, or subjectina- 

Burdiek on Torts, 3in. 

C«) JacHon V. Adams (1835) 2 
Bins. --'. ('- 402, 42 R. H. 633. 
Tlio words were " who stole the 
parish be!l-rope, you scamping 
rascal ?" If spoken while the 
plaintiff held the office, they 
would probably have been action- 
able, aa tending to hu prejudice 

(x) Mayor of ManchcKti-r v. 
tniif,m.i [1891J 1 Q. B. 94, 60 
L. J. Q. B. 23. As to defamation 
in the way of business, see p. 251, 


Til.. Slander of Women 

^:^°' ;';lwi„.\pcoi»l da-nage in the "^fj^^l^^ 
,.„„.e in any lawful walk of ^'^^ .^^'^n, ,. „£ jhi, 

"r"^t":;':::rr— ::£.tt.a.dsau 


...■mniiilo is well ostabUshcd (z) • 

' V illho hu« com.>ittea a felony and been eon- 

a felon in law (a)- 

Little need be said concerning in.putations of eontagiou. 
aJe:funfitting a person for society: that .. . the 






(,,) The tei-hnical reason wa« 
that charges of incOTitincnco, 
heresy, Se., »ero ".pir.tual 
Jetamation," and the matter 
determinable in the EMta.ast.eal 
Coarl acting pm "•'«" «""""• 
See J)«vU V. Gardiner, i to. 
Ifc.,,. IB 6; Palmer v. Thurpe, .6. 
20 «. A remedy oo-cxtonsivc 
with the defect was provided as 
,„„g aio as 1857 by the legirta- 
tureof the Bahamas Islands. Iho 

l,„l,crial Parliament might have 

followed the example with 


(-) 1'. 22a, alio-' 

i„) /.e»)»n» V. laiimer (.18781 

3 ks. biv. 352, 47 I.. J. i:« 
470 There are some cnnooi 
analogies to these rehncmonts 
in the Italian siitecnth-ocntory 
^U on the point of honour, 
such as .Mciato's. 


modern law, venereal disease (6). The only notable point 
is that "charging another with having-had a contagious 
jdisorder is not actionable; for unless the words apokon 
impvU9_..»_CQntinuance of the disorder at thn t.> » of 
speaking them, the gist of the action foils; for such a 
charge cannot produce the effect which makes it the 
subject of an action, namely, his boing avoided by 
society" (c). There docs not socm to be more than one 
reported English case of the kind within the ninctw-oith 
i-antury (d). 

Concerning words spoken of a man to his disparagement EWl- 
in his office, profession, or other business: they arc action- "??^ 
able on tlio following conditions:— They must be spoken j,?^,'"'*^ 
of him in relation to or " in the way of " a position which businc. 
lie holds, or a business he carries on, at the time of 
speaking. Whether they '• .ve rofereneo to his office or 
business is, in ease of doubt, a question of faot. And they 
must citlier amount to a direct charge of incompetence or 
unHtncss, or impute something so inconsistent with com- 
petence or fitness that, if believed, it would tend to the loss 
of the party's employment or business. To call a stone- 
mason a "ringleader of the nine hours system" was not 
ou the face of it ugainst his competcnic or conduct as a 
workman, or a natural and probable ciusc why he should 
not get work ; such words therefore, in default of anything 
showing more distinctly how they wore connected with 
the plaintiff's occupation, were held not to be actionable (e) . 

(6) Leprosy and, it ia said, the 
plague, wore in the same cate- 
•,'ory. Small-pox is not. See 
Blake Odgers, 51. 

(o) Caralakc v. Maplcdomm 
1788) 2 T. R. 473, Bigolow 
r.. C. 84, per Ashhurst J, 

(rf) It'ondinarth V. Gray (1844) 
7 Mon. i Or. 334, 66 R. R, 720. 
The who'e of the judgment runs 
thm: "Thii case falls within the 
princip'e of the old aathorities." 

(e) micr V. DaMid (1874) 
I . B. 9 C. 1". 118, 43 L. .1. C. P 




Spoken charge, of habitaal immoral conduot against a 
clergyman or a domeetic acivant are actionable, a« natu- 
raUy tending, if believed, to a party's deprivation » other 
ecclesiastical censure in the one case, and dismissal m the 
other Of a clerk or messenger, and oven of a medical 
man, it is otherwise, unless the imputation is in some v^ay 
specificaUy connected with his occupation. It is aotaon- 
ible to charge a barrister with being a dunce, or being 
ignorant of the law; but not a .iustioe of the peace, for 
he need not be learned. It is actionable to charge a 
solicitor with cheating his clients, but n^t with cheatinfr 
other people on occasions unconnected with his busine8s(/). 
But this must mt be pressed too far, for it would seem to 
be actionable to charge a solicitor with anything for which 
he might be struck oB the roll, and the power of the court 
ito strike a solicitor off the roll is not confined to co^es ot 
^professional misconduct (j;). , 

It makes no difference whether the office or profession 
carries with it any legal right to temporal profit, or ... 
point of law is wholly or to some extent honorary, a,. 
in the case of a barrister or a feUow of tho CoUege o 
Physicians; but where there is no profit in fact, an oral 
charge of unfitness is not actionabk unless, if true, it 
would bo a ground for removal (A). A charge of actual 
misconduct ^s, however, actionabk in such cases (( . 
Nor does it matter what tho nature of tho employnu..,t 
is provided it be hiwful(fe); or whether the conduct 
imputed is such as in itself the Uw will blame or not 
provided it is inconsistent with tho due fulfilment, „t 

(/) Doyley v. Roberts (1837) 
3 Bing. N. C. 835, 43 B. R. 810, 
snd nuthorilics there cited. 

(5) lie irmre[1893J 2 Q. U- 
439, 62 L. J. «• B. 59fl 

(*) Alexander v. Jr«lr,m 

[1892] 1 Q. B. 797, 61 L. J- 
Q. B. 634, C. A. 

(,) Booth V. Arnold [1896] 1 
Q. B. 571, 61 L. J. Q- D. 443. 
C. A. 

(t) L. B. 2 Ei. at p. 330. 

uncerteken. A gamekeeper may have aa action a^ainat 
ha» taken a broader view than elsewhere Tn ,„,„ / 

To'rj %vr^'""" ^" --^ ^-'^"arrt 

iu V ^ '^"''"^"'■'" damages have been given by a 
by wh,eh an advertuemont of a dissolution of partnership 

'in rektblto h '™'^"'^ "T-"''"- "'^y be d.famcd 
m relation to the eonduot of it, business (»). 

Tl,ore are cases, though not common in our books in 

:^' na:„::"a:f ™ ^z '" '^ "~ - ">' ^"« 

natural and probab o result" nf n,„.j. i 
uL ni8 place ol business is charonri „,:n, ■ l > . 

!2^defrt:i:\:r:in:t' 'j; ^-•"- -ot <■> 

!*i- the firm ha;^earedttL';t::'hV"^''^' 
-t-n lies, but is not properly an action of Idrb:: 
™ther a spen,al action (on the «se in the old "^ „1 „1 

vSu?^- '" """^""^ ^"""".^ -O intontio„.m I 
iMthout just occasion or excuse, ..malogou. to ,„ 7 

for slander of title." General LsofSins:.^:::: 






to a man 

in his 


(0 Fotagrr v. AeuoomJ (1867) 
L H. 2 Ex. 327, 36 L. J. Ei 

(m) Shephrard v. Whitaker 
'1876) L. R. 10 C. P. 502. 
/») ISouOk-JlcUaaMmlCQ. v. 
■ ^- .'^UB Aiavciatioit [m94J 1 

Q- U. 133, 63 L. J. Q. B. 293 
(tliij was a printoJ libc-l, but tl,o 
principle .ccms m|uaily appli- 
cable to spoken words). 

(") Per V. A., SalcUJ/e v. 
•S«'i» [1892] 2 Q. n. 5^4 .5,7 
«! 1-. J. Q. B. 535. ' ' ' 


" ipooUl damage" to be a oau.e of aoUoo in «aoh a 
oaae (j>) . 


** Implied 

2.— Defamation in general. 
We now pan to the general law of defamation, whioh 
applies to both slander and libel, subject, as to slander, to 
the conditions and distinctions we have just gone through. 
Considerations of the same kind may aflect the measure of 
damages for written defamation, though not the right of 
action itself. 

It is commonly said tUt defamation to be actionable 
must be malicious, and the old form of pleading added 
"maliciously" to "falsely," though this was held to be 
needless before the end of tho sixteenth e=ntury(9). 
Whatever may have been the origin or the original mean- 
ing of this language (r), malice in the modern law signifies 
neither more nor less, in this connexion, than tho absence 
of just cause or excuse (.); and to say that the law implies 
Imalice from the publication of matter calculated to convey 
Ian actionable imputation is only to say in an artificial form 
that the person who so publishes is responsible for the 
natoral consequences of this act (.')• " Express malioc 

(J,) Ratdige v. Etmm, l«»t 
note; cp. Hartley t. Herrmg 
(17W) 8 T. B. 130, 4 K. E. 614; 
Ridif<t V. Smith (1876) 1 Ei. 
D. 91, 45 L. J. Ei. 281, mu«t 
bp jasli«ed, if at all, as a mm of 
this cla..: [1892] 2 Q- B. at 
p. 634. 

(5) See per Cave J. [1898] 
A. C. at p. 37. 

(r) Sec Bigelow L. C. 117. 

(,) Bayley J. itt are8<«2«-,v^ 
£ojjjjr (1825) 4 B. t C. at 
p, 255, 28 H. K. at p. 247: 

" Malice in common acceptation 
means i'l-will against a person. 
but in iu iegaLienae it meana a 
wropgfiil. act done intentionaU}- 
wi&out_jast._ciiuge..0I .e»5B4e.: ' 
so too Litf elnln J. in Mcfhermii 
y. Bamelt (1829) 10 B. & C. 272. 
34 R. B. 397, 405. This is «' 
even in criminal iuri^diction: U. 
V. Mwalow [1895] 1 Q. B. 758, 
64 L. J. M. C. 138, deciding thut 
the averment of malice is un- 
necessary at common law. 
(() Lord Blackburn in Capital 


' «oii«)thiiig different, of which horraftor. AW 
notwithstanding tho accmtomed form of docUration, the 
pUintiff ia not bound to provo the falsehood of the words 
compbinod of («) . This i. bet shown by tho nxistonoo of 
the special plea of justitication. 


Evil-spcaking, of whatever kind, is not actionable it Wirt i. 
communinated only to the person 8|>oken of. Tho cauw- gj^'"- 
of action is not insult, but proved or pre.umml injury U, 
reputation. Therefore there must l» a co,„„,unication 
by the speaker or writer to at least one third person- and 
this necessary clement of the wrongful act is technically 
called publication. It need not amount to anything like 
publication in tho common usage of the word That an open 
message passes through the h, nds of a telegraph clerk (v), 
or a manuscript through those of a compositor in u printing' 
office (x), or a letter dictated by a principal is taken down 
in shorthand and type-written by a clerk (j,), is enough to 

find Conntiea BaHk v. Hfintt/ 
(1882) 7 App. Ca. 787, 62 L. J. 
Q. B. 232; and ace pop Lord 
Honchell in Mm v. Flood 
[1898] A. C. at p. 125, and par 
Lord Lindley in S, Watpa Miners' 
Federation v. Ofamorffan Coal 
Co. [1905] A. C. at p. 255. 
Dicta to tho contrary, even in tho 
Court of Appeal, may now l>o 

(«) But Binro parties can be 
witnesses a plaintiff who does not 
deny the imputation on oath ox- 
poaes himself in practice to threat 
rislt and inconvenience, 

(v) See Wittiameon v. Freer 
(1871) L, R. 9 C. ]■. 393, 43 
L. J. C. P. 161. 

(iT) Printing is for this reason 
Vrima faeic a publication; Bald- 

win V. Elphimtoii. 2 W. HI. 
1037. There are obvious excep- 
tions, as if the text to bo printed 
is Arabic op Chinese, or the 
message in cipher. 

Cy) Pullman v. Hilt ^ Co 
[1891] 1 Q. B. 521, 63 L. J. 
a. B. 299, C. A. Note, how- 
ever, with Mp. Blalio Odgcrs 
(Digest, p. 161) that tho dicta- 
tion of words that exist in 
writing only when anil as the 
clerk takes them down riinnot bo 
the publication of a libel to the 
clerk, though it may lie a slander. 
But if the occasion of tiie letter is 
privileged as regards the princi- 
pal, tlie publication to the clerk 
in the usual course of office busi- 
ness is privileged too. V?„j-«.m 
v. OoUct Frcres fl894| I q. |i. 

1 -^1 




«,n.tituto . P«bUcati<m to tho« i«,r.on, if they aro c.,» 
rttlunding the matter, .o delivered to Jm^ Th 
opening of . letter addre«ed to a firm by a clerk of IMt 
n™ authori^d to open Utter, i. a publication to bm W- 

„ ™,mnM to bu V it, i. a fresh publication (a). It appeals 
^LXk that the defendant ha. placed defamatory 

Ce wi" ""-d to the meaning of it, thi. throw, on 
Kendant the burden of proving that the paper .a, 
'not read, or the word, heard by that person; but if it .» 
! ved that the matter did not come to hi. knowledge, 
th e i. no publication (6). A per.on who .. an uncon 
LI instrument in circulating libellous matter, and d .1 
n t know, and could not ^.ith rcaaonable d. ligcnc. hav 
knlirthat the document he circulate, contain, any .uch 
matter is free from liability if he prove, hi. ignoranco (c)^ 
3u h i^ the ease of a new.vendor, ^ aUtinguishedf rom J 

Surbetg il: t! s;ppe. that it is UUely to do .. 
Ijury •■ {d) If A. is justified in making a disparagin,- 

8«, 63 L. J. Q. B. 401, a A., 
loUowed in Edmon<^c«y. B^rc^ 
i Co. and A'orwr [1907] 1 K. B. 
371, 76 L. J. K. B. 346. C. A 
As Fletcher Moulton L. J. pit. 
it thB-plivilege cpvera all ine>- 

d^at. »i deiiing «'«• ^ r": 

mumcatlon in aceordunee wjth 
the reawnablo and mual ??.».r!e.Ct 
(2) See last "»'»• 

nlrmcr (1849) 14 Q. B. 1«5, W 
L. J. Q. B. 20, 80 R. K. 241. 
(J) Blake Odgers, 183 «??. 
(c) The burden of proof i« on 
him, and it ia a question for Iho 
jury: Vitttells v. Mwlie't Selmt 
Xi6™rir,M-[19»«] 2 «•"•""■ 
69 L. J. Q. B. 645, C. A. 

(i) Emmeta v. Faltlt (188S) 


coinmunioation about B.', character to C. (at under 
certain conditio..., ,vo .hall ,^ that ho may boj.'it foUow. 
upon the tond....ey a..d analogy of the authoritio. now 
before u,, that thi. will b« no oxcu,„ if, exchanging the 
envelope, of two loltn, by inadvert^-noo, or tl... like, he 
docs in fact!ite the .natter to D. It im been 
held otherwi,.., but the decision was never -enorally 
aerepted, and i, .>ow overruled (e). In fact, u. had been 
«ugg«led in fonuer editions of this book, it could not 
stand with the e.rlier authorities on ■ publication • 

Sending a .lcf,u„ato.y letter to a wife about k-r husband 
.» " in thocyeof the law, no doubt, .nanand 
wife are for i„„ny purposes one," ' but for .nany ])ur- 
poses-^of which this i, one-'essentiaUy .listi.,'et and 
different persons" (/;. 

On the gene.„l pri.iciples of liability, a ma., i, dec-.ned Vfcrt™. 
to publish that which is published bv his \„d ; "' 
the authority need not bo to publish a partieular"for.u of 
words. A general request, v; words intended and acted 
«n as such to public notice of a matter, ,„ay 
make the speaker answerable for what is published in 
conformity to the general "sense and substance" of his 
'request (j). 

/ A person who is se..orally responsible for publicitio., 

Aud tion. 

16 Q. B. Die. 351, jicr Buwcn 
I- J. at p. 358, 55 L. J. (j. B. 51. 

(p) Tomjmm v. l)n»fu'oott 
(1»83) 11 Q. B. D. 43, 52 L. J. 
1). B. 425, Vina overruled by 1^1- 
'^ifth V , Mf(ct iu;ai)ie [1894] 2 
Q. B. 54, 63 r,. .1. Q. B. 587, 
t. A. Sec p. 283, below. 

(f) JK£jimim Ti^^dMh (1853) 13 
C. B. 836, 22 L. 3. C. P. 199, 93 
H. H. :61, per Maulo J. But 
TOmmunication by (he def,.ndaiit 

P. — T. 

to hij wife ii not a publuatioii: 
Ifemikut V. Morgan fI888) 20 
Q. B. D. 635, 57 L. .1. (J. B. 241. 
(.9) PnitiiJi^.frrtcull (1869) 
I-. 11. 4 Ei. ie9,~38 f.. J. E» 
105, Kk. Ch. Whcllicr tbo par- 
titular publication is within the 
authority is a question of fact. 
All the Court decide is that 
verbal dictation or approval by 
the principal need not be shown. 










,(.„.h M an editor) 1 who h« ad-niUod V^^^l 

>t a. a ruto ho.m.l <» .li«lo«> th. n.n.e of the ao....U 

author (*)■ 

Suppo-iDK the autho,.hi,. of the word, eon.phined of to 
be p^ved or ud,nitt..d, nmny quction. u.ay romam. 

TlTe construction of word. aUoRod to b-; ■>«>">"" (;;; 

r l^v,. Th. r..q«ircmcnt of an i.-.nucndo. «h.H- 

« rThv tl„. .,\H.lition of forms of pleading. It I^ a 
fr of UllJ^or a plaintiff who ,uca on. ordsn,.. 

Q B.D. 394, 58 L..1<1 »•«"'■ 

V ;/„,(./ (1882) 7 App. I'll- "'. 
52 L. J. «• n- 232. »1"-™ '"" 
law i» eloborntcly Jis<-u.«d; 
KeviU V. Fi«e Arl. ir. Im«rmc' 
f.„ [18871 A. (', 68. liB I^- •'• 
Q D 195. F.r o shorter ei»Dipl<' 

„l word, held, upon romidrralion, 

i„g, .CO Mu-lirii" V. f',;,' (l«ia> 
L R. 10 Q. B 549, 44 L. J. 
Q B. 153; for oni- on the ollwp 
gi,;„ of the line, Ihrl v, "V/ 
(1^77) 2 C. P. D. 140, 40 r.. J. 
C. P. 427. 



in .hon.Mv« libcllo..., .„d doo, not „ll..^ i,. hi, cl.i» 
a they „nvey.^ « ,ib„„o„ „„.„, „„, ,^^^. J 

tlTr'"1 """• '•"' '"""■' *" '•'™ "".' -•"<• "f 
ha c not /*'■''' ,: I'?'""""'"" " «'l"i-d if the word. 
ha<c not, for ju.homl purpo«., ,„,• ..e..,;,,,, „,ji„,.„. 
me.n.n^ „t all, a, ..i„^ f„„i^, p„,,„„.„, „^ „,„ ,.^^ "^ 
Th,. however „ „„t ,,„;,„ the ,an,o ,l,in^ „, „,. („„„.„.;,,, 
A Iibo .n a foro>«„ |a„«ua^ ^.-^^t „„„, ^,,_ ^^ ^_._^_^^ 
l«t,o„ o ,how the ordinary moaning of the wor,l«. and a 
.l..nnnt further ,nn„ondo to .how that thev boro „ .peoial 
injurious moaning. ' 

The aetionablo or i„„«ent charaeter of word, .lepond, L1M.„„. 
not on the intention with which thoy wore but '^'T^- 
on theiraetua meaning ,.nd tondonoy when published u») '°™'°l^' 
jV man ,. U.und to know tho natural effect of the language J^f „, 
me UM8. 80 far 1. this principle carried that, accordine '*"''""'''■ 
to the law now laid down in the Court of Appeal and tho 
Hou»o of Lord., ■ i. immaterial whether the defendant 
intended his words to apply to tho plaintiff, or knew of 
tho plaintiff. ex..tenee. if it i. found as a fact that the 
«ord. might reasonably be thought applicable to him- 
but It would 8cem to bo a good defence to show um tho 
defendant, writing in fact of «,mo other ,] S or u„ 
imagm^rj- J. S.. «aUiUi>- di^ mt know but could not 
ro.«maiJy know that hi. word, might bo ThouM,. 
apphoahlo to tho real per.on colled .J. H. who is p! 
('«(»). But where the plaintiff .,00k. to put ,in aetion- 

(*) See 7 App. Ca. 74S (Lord 
Sl-I borne). 

(!) Blake Odgrrg, 125. 

(m) 7 .\],p. Ca. 76», 7S2, 790, 
■■'• P- 787. Th- oW rase., about 
word, allosted to be .,x,ken in 
josl are covered hj- tbis M-ider 

s 2 

f«) /Mto„ ^ Co. V. J„„„ 
[19101 A. C. 20, 79 L. .7. K. B 
198 (note the jud|,mrnt 
of Farwell L. J. in tlie Court 
of Appeal [1909J 2 K. n at 
P- "6, 78 L. J. K. 1), 937, 
H e.\preisly approved bv Lord 
Alkiujim and Lord Corell). Tho 



u- u it is not obviously 
able meaning on .o.d, ^JJ^jtoJd, are capable o£ 
conveyed, he must make out t^t tho^ ^^^^ ^^^^ ^^ 

L,at meaning (which - "^-^f^;.™ ,„ that he has to 
Lnvey it (.hich is a matter f f act) ^^^ ^^.^ ^^^^ , .^ 

convince both the ^^^^'i^' '^I^ ,he plaintiff my 
cause if he fa.l «'* f ,l„t a« to the actual intention 
Ut.i»terrogate ^^ f^'^^^ c^J^^^^^i "i iv) . Wo.* 
Ch,, ,vhich he useu th .ords comp ^^_^^.„„ ,„„,,, 

,.e not aeomcl capabk » ;f^''™^hed to then, tl^re 
because it might by poss ja y J^ <^ ^^ ^^^ ^.^„^„,„. 

I„,„rt bo something in either tn ^^ ,^ 

*— that --^ -gf ijj^^nguage it is not 
'reasonable mmd(9). ,',. ...^tienf of the injurious 

enough that the termsshould be P . ^^^^ ^ ^^^.^^^. 

eonsti-uction ^^^^J^ ,„ jury, .ith. lai^. 
,,.pablc of It. And it i ^ ^_^.^^^^ ^^p„„. 


tion and 

on, "I "^"^ — . , 

The publication is no less the spoake..' 


roa^on. to the contrary, ^vhich to 
Kletchrr Moulton L. .1- H""! 

In mo soiiictimra to navi » 
r„™ „p .o nu. with an a„.ry 

,a„, and roproacl, mo «itl, 
havinir lampoonod him, »0.en I 

„, lite -HNo. 604. Oot. 8,1.11). 
'(„) I.oril Blaoliburii. 7 Al'l'' 

''J".,« - ;"i|-' 

1 K. B. 754, 79 I.. .1. I- «■ 
541, C. A. 

(,) Lord Scltorne, 7 Aw. l'; 
744 Lord Dlacliburn, ; '^ nS. 

that tho detamer i, ho .1,,, < 
many iotorono«, ohoo-c. a 
famatory one." 

,«;,„«.< [18M1 A- '■^"*''' 
L. J. r. C. 105. 



act, and none the loss makes him answerable, bt^usc he «port. 
only repeats what he has heard. Libel may consist in a ffij^ 
fair report of statements which were actuallv made, aad on 
an occasion which then and there justified the original 
speaker in making them (s); slander in the i-cpetition°of a 
rumour merely as a rumour, and without expressing anv 
belief in its truth (<). 'A man may wrongfulh- and 
'maliciously repeat that which another person may luive 
uttered upon a justifiable ocasion," and "as great an 
injury may accrue from the wrongful repetition a.s froiri 
the first publication of shindcr; th,. fir«t utterer may liaie 
l>een a person insane or of bad character. The person who 
repeats it gives greater weight to the slander " (u). Cir- 
cumstances of this kind may count for much in assessing 
damages, but they count for nothing towards determining 
whether the defendant is liabl.. at all. 

From tliis principle it follows, as regards spoken words 
that if A. speak of Z. words actionable only with special 
damage, and B. repeat them, and special da.uage ensue 
tioni tlie repetition only, Z. shall have an action againsi 
B., but not against A. (x). As . the defendants belieC 
m the truth of the matter published or ropublished by 
him, that may afloct tlie damages but cannot affect thr 
liability (j,). Good faith occurs as a material leoal 
clement only when wo come to the e.xce|.tions from t'|■,.^ 

CO furcell V. Sowler (1877) 2 
C. P. Div. 215, 46 L. J. C. P 

m Walkin V. Hall (18(i81 
t. a. 3 Q. U. 396, 37 L. J. Q. b' 

(w) Littleilale J., ^I'/fmon v, 
a»"Ws (1829) 10- B. i C. 263^ 
■»3, U U. K. 397, 405, adopted 
by Blackburn J., L, 1[. 3 q jj 
«»■ Tlie latler part ot the 4th 

liosolution reported in the i„,'l 
of Xortfiamiiton's cagp. 12 Co. 
Bop. 134. is not law. Sec ])(r 
I'arko J., 1(1 B. i: C. at p. 273, M 
B. R. at p. 41)7. 

(a:) See r,'i/iiiit \. Sciilt (18li2) 
1 H. it C. 153. 31 1.. J. Us. 3,11, 
p. 247, above. 

(y) J'idmun V. Aim'ie (1854) 
10 Ei. 63. 102 K. n. 478. 



general k^' that a man utters defamatory matter at his 
own peril. 

tioiu: fair 

3.— Exceptions. 
We now have to mention the conditions which 
' exclude, if present, liability for words apparently m- 
iuripus to reputation. 

Nothing is a libel which is a fair comment on a 
Ubjcct fairly open to public discussion. This is a rub, 
L common right, no of allowance to persons m any 
■particular situation (.'), and it scorns not correct (with 
all defcronco to recent dicta) to speak of utterances pro- 
tected bv it as being privileged. A man is no inoiv 
1 pnvilcged to make fair comments in public on the pubh. 
Lnduct of others than to compete fairly with thorn „. 
i trade, or to build on his own land so as to darken t unr 
newly-made windows. Tl^ not a cause of action 
, , , Jj. with an excuse, but no causo of action at all. i^ 

^ ib.U^iU^iUih^"(«)- This is the received doctrine 

of Camvhdl V. SpoHtood. (fc). confirmed by the Court 
of Appeal in M^i^Je v. C«rs.n (c). On the other hanJ, 
the honesty of the critic's Wief or motive is no defence. 

552; incidcntnlly referred to by 
Flotclicr Moulloa L. J. »» » 
oasc ot the highest authority 
in Hunt V. Star Xetnitalier ''"• 
[1908] 2 K. B. al p. 320, ond 
see per Vaughon Williams I.. .1. 
I1SU91 1 K. 13. at p. 251). 

(c) 0887) 20 U. B. U'v. '.ij^, 
58 L. T. 331, disagreoins »itli 
the opiiiion cxiiressed in ]hii""f"l 
V. Ilarriton, note (J), P- -''*' 

(C) See per Bowen L. J., 4i£iii 
^(^j^^Caao,. U887) 20 Q. D. 
niv. al p. 282. 

(„) Lord Enlier M. H., 20 
(I. B. Uiv. at p. 280. I^rd 
Collins, however, said, as Master 
of llio UolN, that the word privi- 
lege i« as good as any other: 
T/,omn. V. Hv<idb«n,, Am"«' * 
Ca. [1906] 2 K. II. 027, 641, 73 
L. J. K. B. 728. 

(6) 3 B. 4; ». 769, 32 I,. J. 
«. B. IS.'i (1863), 129 II. R. 


'l-ho right is to publish such cou,n„.„t ^ i« the opinion 
ot impartial bystanders, as rcprfs.ntcd by the jury, may 
lairly arise out of the matter in hand; though jurymen 
are not free to find that a oriticisu. is not fair merely 
hecauso they do not agree with it(rf;. Whatever go.« 
heyond this, even if well meant, is libellous. The courts 
have, perhaps purposely, not fixed any standard of "fair 
.nticism ■ (e;. One t,.st very connnonly applicable is the 
distinction b-tween action and raoliv... Public acts and 
l.crforman«..s may be freely . nsui-oj as to their merits or 
piobubl- =ons«quei,c™, but wiek«l or dishonest motives 
must nc. be imputed upon mei-o surmise. Such imputu- 
lions, even if honestly made, arc wrongful, unless there is 
HI fact good cause for thorn. " Whei-e a person has done 
or published anything which may fairly be said to have 
mvited comment .... ev,.ry one has a ri^ht to make 
a lair and proper comment; and as long as he keeps 
within that limit, what he writes is not a libel; but that 

.« not a privilege at all EuuttLMli mav fr^e- 

'iuaitly bo an element which the jury may take- into 
aiiisiiieraUon in considering whether or not an alleged 
liirf wa» m excess of a. fair' comment; but it cannot in 
its»l* pxavimt the matter being libellous- . /■ It must 
jiKit be supposed, l,ow,.ver, that aperscmal attack can never 
:hc fair comment. The question is whetiier it goes bevond 
ivasonable inference from the facts y,. 



(.<!) XcQube V. HV.;,™ 
3l«,nmg Xeiia Co. fl903| 2 
K. B. 100, 72 L. .J. K. B. 612 
f. A. 

(e> Bowcn L. .1.. 20 Q. II. Div. 
« p. 283. 

7) Blackburn J., CimjJjJLy. 
^l"JUisU:»o</e (1S63) 32 L. J, 
')■ B. at p. 202 (with verbal 
variatioM, 3 ]!. k S. at p. 781); 

cp. Bowcn L. J., 20 Q. B. Div. 

"t p. 284; Joi,„i V. C„cl„ Trade 
I'uhlitlnmj Cn. [1904J 2 K. B 
292, 73 L. J. K. J). 752, C, A. 

(7) Hunt V. star \e,i,p«per 
fo. |1908|2K. B. 309, 77 L.J 
K- B. 732, C. A., and ,oe per 
Lord Atkinson in IMktnjl v. 
Inha,„-lu;c fl908| 2 K. B. at 
p. 3211, 77 1,. J. K. B. 728. 


)' ' 




The c^ o£ a criticiBm £a=- in it»el£ Ix-jng provc<l to 

be thought on pnnc.plo to f-l J't^u ^ ^^ ^^__^ 

that the law ,iU not c~ tl" - - ^^ ^^ 

i„ oKcicisoot a »<''°™""«^'- /;'„!;, motive h ^.\- 

Lnisgiblo (ft; . i "« •""J ' "j , ,j. that criticism 

Lgcst^so^oti^ecigol^L^^ ''^._ inspired hv 

>''"' th:"s ottii-niniontataU. Tho .aso,. 
peieonalhostxh^J « ^^^^ ^,^^_^^ ^j. ^^^^^^j g, 

given by CoU.n« -^_ ^^ ^„„,;d,, j,;, comment 

fui-ther, and ^'-^ *1^ ^i^.tion (of which w. 
as only a case o£ P"^'^«8»a P ,uV,n,itt«l, !«• 

.peak late,-). But this ^-w — • 't ^^ ._^ ^^^^ ^ 

oveiTulo (fc; • £ Appeal, though 

^,„«o * C»., not. W, P- -62. 

75 I.. J. K- B- 259- 

fil Mer:,;,lr v. n,,™,., 20 
Q B.r;v.atp.281. nore.t« 
to be obBorvrf that tho comment 
distioetly misrepresented the e,n- 

,enl» of the pl»i"ti«'^ "°''': 

„. .omething that »« not there 
r Hunt V. ■">''"■ -N <^"«/"'' i^' 
cl: [IMBi 2 K. B. 309, 77 L. J. 

K. 11. 73'^, f- ^• 

H^ i, true that in 1«72 t ,,■ 
majority of the Court of C. 1. 
treated fair comment a., a branch 

i of privilege: """'"'^ ''■"""". 
„„, L. R. 7 C. P. 606, 41 I.-l- 
p 206. But Campbell >. 
,S>„»i„coo,/« was not brought l« 
their atlenlion. No que. ion 
malice va. before them, bnt , 
eHect, only .hctlier the miitl" 
„itici.ed«a, open to public com- 

^i,t If the defeni* of f«>r 
,.;„ men. were wholly ai,imih^^ 
to ,.,at of privilege, the rcul. 
luld be to make the law n.on- 
favourable lo defendant!. 


to l.old a view barely compatible with them, aud we must 
wa.t for the House of Lords to toll U8 finally which view 
shall prevail («). One could wish that Blackburn and 
Willes had been able to consider the point toffether in the 
Exchequer Chamber. Their agreement woul.l have been 
conclusive, or their diilorence more instructive than their 
detached opinions. 

What acts and e(,nduct are open to public comment is a What i. 
r,ucstmn for the Court, but one of judicial common s,.n3e S,^, 
rather tlian of technical dolinition. Subijct-mnttcr of tliis """*«' "' 
kinil may be broadly classed under two types. '""' 

The matter may be in it«Jf of intcrost'to the common 
vtail, as the conduct of persons in public offic^-s or 
aftnirs(OT:, of those in authority, whetht.r imperial or 
local .>;, in the administration of the law, of the managers 
of public institutions in the affairs of those institutions, 
and the like. 

UiiiUmw bo laid open to the public by the voluntary 
act of the person concerned . The writer of a lH«.k offered 

(0 i-carnoil Americaii oitiiium 
jjefmc to have no difficulty in 
hoidinif will, JllocklHirn 'and 
Dower, against Willci and l,ord 
Collin*, that the di»tinrtion i» 
clear. .V defendant setting u|> 
privilege ns^crts that ho is jiro- 
;"eted by slaniling in a spoeinl 
relation to the faets of tlie ease: 
but -'When hia defener is fair 
mninient, he asserts that he has 
done only what every one has a 
rifht to do ": Burdick on Torts, 
331. For judielal following ot 
the doctrine in ][,„t.ond v. one must go, it would 
«ppear, as far as South Dakota. 
To the same effect Street, boun- 

dalions of Legal Liability,!. 303. 

I '") Including the conduct at a 

public meeting of persons who 

attend it as private citizens: 

Duch V. ])uiu«,i (1874) L, n. 9 

C. P. 396, 43 L. J, c, [', 185. 

■\ clergyman is a public officer, or 

at any rate the conduct ot public 

Iwoiship and whatever is inci- 

|jcntol thereto is matter of public 

•interest: A>7j, y.Tmtm^j (1865) 

L. n. I«. I!. 699,35 L.J. Q. fl. 

»40, cp. Kellf v. Hherlock (1866) 

L. K. 1 (J. I), nt p. 689, 35 L. J. 

Q. B. 209. 

(») urcdl v. .Sr„i;cc (1877) 2 
I'. I", iv. 215, 46 L. J. C. v. 



for sale o), the con>po8or of muBic publicly portormod, tho 
author of a work of art puUicly exhibit..!, tho manager of 
a public entertainment, and all who appear as pcrformei-s 
therein, the propounder oV au invention or di30overy 
publicly deseribcd with bus consent, are all deem . to 
submit" their work to public opinion, and must take the 
risks of fair criticism; which criticism, being itself a 
public act, is in like manner open to reply within com- 
mensurate limits. 

What is actually fair criticism is a question of fa.^t. 
jprovided the words are capable of being understood in a 
L.uso beyond the fair (that is, honest) expression ot a,, 
luufayoumbk opinion, however strong, on that which tl,.. 
pluintiir has submitted to the public: this ,s only an 
application of the wider principle above stated as to the 
construction of a supposed liheUp). In Utcravy and 
hrtistic usage criticism is hardly allowed to be fair winch 
Les not show competent intcUigenco of the suhject- 
Lmttor. Courts of justice have not the means of applyms; 
so ttnc a test. 

The ri-ht of fair criticism will, of course, not cover 
untrue statement* concerning alleged specific aces of mis- 
conduct ,3), or purporting to describe the actual contents 
of the work being criticise! fr). Thus a wholly gratuitous 
elmrgc or suggestion of plagiarism would not be tau 
,.„„„„,„t(.). In short 'fair comnieut nms,. be based 

t(,) .Va to the prea'-hcr of a 
soriiion not printed, iiiur.c: 
CiithKrmle v. ilialt (,1816) 15 ,\I. 
S; W. 319, 71 R- B- 679. 

(,,) Merinle v. Canon (1887) 
20 <l. I). Div. 275,58 L. T. 331; 
.leimery. A'll,ek,n (1871) L. R. 
7 (). 1!. 11, 41 L- J- '^- "• '■*■ 

Qu. whether the dis-icntiiif}; jiidi-'- 
inent of Lush ,1 . was not right. 

^q) Dttvis V. Shppstimr. (18bti) 
11 .ipp. Ca. 187, 55 L. J. V. C 
51, J. f. 

(r) Mcrivfte v. rarson (18<8) 
20 (J. 1). Div. 275, 58 L. T. 331. 

(.,) Tor Vaughan Williami 


upon facts truly stated " (<), and this may now be taken 
118 elomontary. But we shall jircsently see that the appli- 
cation of so sound and (one would have thought} so plain 
'I principle in the instruction of jurymen hy moro or less 
hurried judge's has led to no small confusion. 

Oefnmatiou is not actionable i£ the defendant shows Ju.ti«c.- 

that the defamatory matter was true; and if it was so ''°"°5 . 
.1 ' tfrouod of 

the purpose or motive with which it was published is «""'• 
irrelevant. For altliough in the eurrent phrase the 
statement of matter "true in .substance and in fact" 
is said to be justilied, this is not because any merit is 
attached by the law to the disclosure of all truth in 
season and out of season (indivd it may he a criminal 
olVence}, but bteaus;! of the demerit attaehinj,' to the 
plaintiff if the imputation is true, whcn<by he is deemed 
to liave no ground o£ complaint for tlie fact being com- 
iimuicated to his neighbours. It is not that uttering 
truth always carries its own justification, but that the 
law bars the other party of redress which ho does not 
deserve. Thus tlie old rule is explained, that whei'o 
Itrutii is relied on for justilieatioii, it be specially 
pleaded; the c:iuse of aetion was lontes.sed, but the 
■special matter avoided the plaintilVs right (h). " Tho 
law will not permit ii man to recover (hi,ii:ige9 in respeet 
of an injury to a character which he either does not or 
ought not to possess" (a:). Tliis defence, as authority 
and experience show, is not a favoured one. To adopt 

L- J., Joi/nt V. C'j/cle Trade Pub- 
'itlung Co. [1904J 1 K. B. 292 
a?, 73 L. J. K. B. 752. 

(0 Per Buckley L. J., Peter 
H'atker if Son V. Ifoilijdon [1909] 
1 K. B. 239, 254, 78 L. J. K. B. 
193, where all the previous autho- 

rities are summed up. 

in) Compare tlie ainiilar doc- 
trine in traspaHB, whieh has pecu- 
liar conHcqucnces. But of this 
in its place. 

^x) Liftledatc J., 10 B. & C. 
.It p. 272, ;« H, Ii, at p. 405. 


it i. to forego the u»ual advantage. o£ the dofondiB* 

' "y and commit o„e«lf to a coauUT-attack m wh. h 

S Complete »ueco. will bo prontable, and fadurc w.U 

be disastrous. 

« . b. What the defendant ha« to prove i» truth in substance, 

-^- thaTrl must show that the imputation made or 

rjut.. led bv hin,-not merely the facts on b.« 

Xnoes were founded (,)-was true as a whoWand " 

■ ::zr^;::::^^s^^^^ 

fact (a). 

For some time past it has been a eonuuon practice, n> 
MUed *oi some urn 1 mature of ^:rrativeancl 

drfmceof i,ere an alleged libel is a miMuit 

juirtiJoa- <"»«'^' ""^"^ " , °.„ ,,„{„„„„ that so far as the worf> 
iio««.d comment, to plead .« defence tlut 

sued on consist of allegations of fact, thev "'■« ^" 
ublnce and in fact, and so far as t^v ^sist^f e^P^^ 
f nT,inion thev are fair comment (bj. Oonsiaerca 

(y) The ploinlift U nul entitled 
to Mil «or juatiScotion or par- 
ticulars of allcdutioM repeal^. 
by the defendant on the plaintiff a 
own authority: Vijb.j v. «»«"- 
,*,! .V«« [1907] 1 K. B. 502 76 

L. J. K. fl. 321, C. A. Here 
the dsfenoe was not properly a 
justification («^ the 
paragraph), but the prineiple 


,f,,„, equally applieal.le where 

" '''.^t;r„..„„ V. Ml„r (1»8'J. 
23 Q. 1). D. 388, 58 L. J. «■ »■ 

(a) A'exmilcr v. Vorlh Eiisi"" 
K Co. (1865) 6 B. «. S. 3W. 
34 L. J. «. B- 162. 

(6) Sec Odgers on Libel, im. 


an inducemont (iidded for convcnienoo rather than of 
necessity) (c) showing that the preliminary condition of 
the comment being on facts ond not on fictions has been 
satisfied: " if a defendant cannot sliow that his comments 
contain no misstatements of fact, he cannot prove a defence 
of fair comment." .So it was put bv the late Lord Collins 
08 Master of the KolU(d). However this may be, the 
proper way of directing a jury in a case of this kind is on 
principle, one would think, not huid to find. Wo may 
assume thut the publication of the words is not denied or 
cannot be denied with success, that the matter of them is 
pkinly defamatory as a whole, and that the plaintiff's 
conduct or work, as the case may Iw, was open to fair 
«)mment either as being of public interest or as having 
been subniittcd by himself to public criticism. Then it 
will bo explained to the jury that they have to decide 
whether the facts stated by tlio defendant for the purpose 
of commenting on them were substantially true: if not, 
verdict for the plaintiff (e) . But if they find that the facts 
were truly reported, then thoy must go on to consider 
whether the iufercncss and comments were such us a 
reasonable man could honestly express in goo<l faith. It 
is important to explain clearly that the issue of fair com- 
ment is distinct from that of the facts being true, and tho 

:l I 

(c) In strictness the avernwint 
of fair comment iiifludea, as 
matter of law, the truth of all 
inaterial facta, and «h<iuld there- 
fore suffice without inore. 

(d) Digb*/ V. Flii'incinf .\ew.i 
1 1907] 1 K. IJ. 502, 507, 76 L. J. 
K. B. 321. We prefer this, with 
j;rcat rcdpt-L-t, tu the later expo.-ti- 
tion of Buckley L. J. in Peter 
Walker ^ Son v. Hodgson 
11909] 1 K. B. at p. 253. Tho 

nctual decision in that case is that 
tlie defendant is entitled to in- 
torrngato the plaintiff a*i to the 
truth of tho material fact: relied 
on: liighij v. Finnn al .\en>i 
had derided that the plaintiff 
cannot iiitorro^ato the defendant 
as to mattera of fact repeated by 
the defendant from the plaintiff's 
own statemerta. 

(c) This is tho case, e.y. of 
Merimlc v. Carson, p. 26(i, abovo. 


i ^111 


^^■^ r :juri.peSox:r argument., .na iudg- 
ments on appeal mUicu, «• ^ ^^j^ ,j 

«„ needful in the P-'^ -/^^^J^: law' (.)• The 
have hid do«n any d-'f'"^"";; „,„ ti„„, .how a 
.otoriou, fact that 3un». J^ ^ ^ ^^^ J„, f„ jefama- 
.trong bia» m favour "^ P^'" 7^^^,i,„ jamag^, d». 
tion, and arc aUo prono to gi>e execs 
not lighten the ta«k '^^^ ,,,,,^0^ the mattor 
There may be a fur Her q .f „„a, to eovor the 

alleged as iustifieat.n *;:' i^.^Os e^mplaind 
«holo eause of aetu,n »"""8 „£ ,,,,,, ,ave so tur 

of; and thi» api^ars to be " J"^ °" „„, „j t,„ or 

^ it depends on the -"^^j;; *;; ^eti^ally conveyed. 
„ore possible ones, those worU ^^^ 

,t is 'a rule of la. ^ ^ITdito " 4-Wwing that h. 
^itor of a iourn^a e n cd.tor^^ , ^^^^^ ^ ^^ 

«.„ onee eonvioted of felony ^^,^ „„t ^^^A 

has actually e"-"'''^/''""'.;;" o ^ntenee of the la., 
to be a felon by full ^■•"'"™";i "^^^ly eonvietcd, or on. 
o, by a pardon; -'.^J^J' ^Xharged. But i. 
,.ho has been eonv.ct .d ami d ^^^^. ^^^ ^ __^^^ ^, 

„.ay be for a .,ury to ^> ^ ^^ ^^^^^^ ^„„. 

" convicted felon ""P»'^'> '''^ "^^^ ^, ,„^„ time he was 
■raUy, or only conveyed the fa^^ J J^t ,^^ ^^^^^ 

eonvicted(.). ^^ben- th^l J' >> -^^^^„_ ., ,, „„, . 

(/) Iliini >■• ■"" 
Co. [190812K"„ 
77 L. J. K. B. 732. 

Co) mi.; /)"'■■'■!"' 
o;,;« al. L. 1907) 


in note 

thereto [1908] 2 K- B. at P- 325- 
77 L. J. K. B. 328. 

ih-, lc'm«« •■■■ '■"'"•" '^' 



without thoM cireuni»tuiic««. tliougli iii lu«- thoy iimj- Ik' 

irrelevant, or relevant only on ovidunoo of some clem iit 

or condition of the ollonco (i). It aooins that a defendant 

in a civil action is not estopped from juatif ving an aunrtiou 

of facts amounting to a criminal offence merely becaiis > 

the phiintiff liu» bctii tiicd and ac<iujlto<l, or sr>mo onoel«! y, 0,'}^^^^^^ 

convicted, of tlio Bumv olfcnti,'; for the judgment in th,. XiA**!!^^ 

criminal proceedings « ii» rex inter iilim lutri (k) . Whctliir 

he will be believed i» not ii ijuistion of liuv. The limits of 

the authority which the fourl will exerilse over juries in 

handling questions of ' mixed liict and liiw " must Iw 

admitted to be hard to dillne in this and other brauchis 

of the law of defamation. 

Apparently il would miiki! 

! no difterence in law that tin- Deftn- 
dcfendant hiul made a ilefmuitory statement without «n,\ S"im. 
belief in its truth, if it turned out afterwards to have ""'<«™'- 
been true when made; us, conversely, it is certajii that 
the most honest and even reasonable belief is of itself no 
justitication. Co8tj4. howeier, are now in the distielion of 
the Court. 

In order that public duties may be disihaigod without i,„m„„ity 
fear, unqualified protection is given to language used in i|^^""" 
tli(^ exercise of ])urliunu'ntnry and judicial functions. .V I'»fli"- 
member of Parliament cannot be lawfully molest'd out • j"'dV" 
side Parliiinient by civil action, or otherwise, on uceount 
"f anything said by him in his place in either House (r. 

(0 lle'fh(tni \. Iilitrl;,<,„„l 
(18J1) U C. ]i. 128, 20 L. J. C. 
1'. 187, 87 Ii. n. f,9f,. a very 
';iirioua case. 

a-) Sco Fftrw V. Xalt.iU 
(1856) 11 Ex. 5li9, 2o I-. .1. E\. 
20(], 105 R. Ii. 651. Xu autlii,- 

rity iiiH been fuiiml prtvisi-ly in 
[loiiit on a case of defamation , 

(0 SI. 1 II,.n. VIII. f. S(IVo 
llicardo Htrodt') ; Bill of Itijflit.s 
1 Wni. A: JI. sow. 2. r. 2. ''Tliaf 
tlic frcpdonip of Hjipfrli and 
debatr^ or pf-K'Cjdins.^ in i'arlva- 






An .clion will n.a lie „R.i.«t a judgo for any word. ««.d 
bv him in lu» judicial capacity in a court of ju-tice (m)^ 
li i. not open to di^u.Mon whether the word, were or 
wore not in the nature of tuir comment on th« matter m 
hand, or otherwi« relevant or proper, or whether or not 
thev were u«od in good faith. 

Parties, advocate,, and witne.,e. in a court cf ju^tic 
are under the like prot,.tion. They are -^ject to t,,„ 
authority of the Court itself, but wl^fver they .a, m 
tbe course of the pr..eedin., and wUh ^feren« to ■ 
matter in hand i. from 4ue,t.on eUewUcro. It 
"ot .lander for a pri«>ner. coun.. 1 to make >n,muat.ou. 
against the prosecutor, which might, it true oxpla.n «>n.. 
„i -he tact, proved, however gros, and unfounded .ho< 
in.inuatio„. m.y .« ("); "or for awitne,, "f'er h.. e..s^- 
examination to volunteer a statement of opm.on b, .a> 
o£ vindicating his credit, which involves a ernmnul 
accusation against a person wholly unconnected . 
case to). The only limitation is that t..o woiUi -- ' : ' 
CI way have reference to the inquiry the Court h 
iengaged in. A duly eonstitut«l military court ot mc,u,n 

mcnt ought not to bo impeached 
or (luoitioned in uny i""'' "' 
nluLO on' »' Pnrlyament." 

(,„) .W( V. •Vl""./'''''' <1»«'*' 
L B. 3 Ex. 220, 37 L. J. Ex. 
165; the protection cstondB to 
jadieinl not>, ree the .l.^pter of 
General Ex.eptioM obove, pp. 
118—121. and further illuslra- 
tiona«)». Blake Odgcrs, 233 .,«. 
\ maRiftrato a. tinn judieially » 
a judge within this rule: L„u, v. 
L!eu,ell„« [1M6] 1 K. B. 487, 
75 I-. J. K. B. 320, C. .\. So m 
an official receiver reporting to 
the Court under the Compauieh 

Winding-up Act, 1890, B.M..,..- 
Ufi. llm,i!,h„m [1908] 1 K. 11. 
584,77L. J. K. B. 311. 

11 (J. B. Div. 888, whore uuiliu- 
ritio* are collected. 

fo) Seaman v. Ac(A'.'''" 
(1876) 2C. P. Div. -a. W l-J- 
C. P. 128. But tliei£- " "" 
nrivllcgo Jot tlioio who pro.urc 
other persons to give false and 
delamatorj-.tviJcnco; A.c. V. 
Ccle,i.l0e. (1876) 121 .Ma»». •IH 
Amei, Sel. Ca. 616. For .Vm"'" 
ean view, on tlie main .|oe4,oa 
SCO Am«, "P- "''■ ■"'■ 


i. for thi. purpo.0 on tho wmo footing a, an ordinary 
court of ju.t.00 (p;. So i.a «loct committocof the Hou» 
oi Common, (,) . Stalomont. coming within thi. rule aro 
«.dtobo ab.olutDly privileged." Tho reaaon for pre- 
cluding all di«,u8,ionof their re»,onablene«, or good faith 
before another tribunal i. one of public policy, laid down 
to tho same effect in all tho authorities. Tho law do*, not 
Kok to protect a di.honest «i.„0M „r a m;kk», advocate 
but doom, thi, a loss cvU than exposing honct witne,«, 
and advocates to vexatious actions. 

A. to reports made in the course of naval, or militorv- Report. „f 
Juty, but not with reference to any pending judicial S^"' 
proceeding, ,t ., doubtful whether they come unlr this 
head or that of "qualified privilege.' A majority of 
the Court of Queens Bench has held (against a .strong 
dissent) not exactly that they are ■' absolutely privileged," 
but that on ordinary court of law will not determine 
■luesfons of naval or military discipline and duty 
But the dec«.on is not re.oived as conclu5iu.A^ 
Communication, relating to affair, of State and made'b'y 

(p) Dmckiiu V. lord Jtcieb) 
(1878-5) Ex. Ch. and H. L., L 
n. 8 Q. B. 255, 7 H. L. 744, 45 
L. J. Q. B. 8, ux opinion of 
indgra 7 H. L. it p. 752; 
Dawkint V. f,i„c, Edward of 
Saxg Weimar (1876) 1 Q. B D 
m, 45 L. J. Q. B. 567. 

(?) Ooffirt V. i)o,me«y (1881) 
6 (3. B. D. 307, 50 L. }. Q. B. 
303. A licensing mooling- of a 
County Council ia not a Court 
fop tiiii purpose: Royal Afua- 
"'"" Socis'y V. Parkinion [1892] 
1 Q- B. 431, 61 L. J. Q. B. 409, 
C. A. 

(r) Dawkiiti T. lord faulit 
(1869) L. H. 5 Q. B. 94, 39 
t. J. Q. B. 53, leo tiio disMntinir 
judgment of Cookliurn C. J., and 
tho note, of Sir Jamej Stephen, 
D'g. Cr. L. art. 276, and Mr. 
Blake Odgen, op. cil. 246-7. 
The reference of the Judicial 
Committee to the oam in Jfart v. 
Gumpaek (1872) L. H. 4 P C 
■139, 464, 42 L. J. P. C. 25, {, 
quite neutral. They declined to 
presume that such an "absolute 
privilege "existed by the law and 
customs of China as to official re- 
ports (n the ChincB, Corerimicnt. 



of "priYi 


o„o officer o£ State to another in the course of duty are 
roS privileged on the ground of pubho pohey. 
MoreoS the., is the wider rule that doeuments contam- 
LT oh -mmunieation. eannot be produced xn ev:d^cc 
2 any purpose (,); unless, of eourso, they have been 
published by authority. 

There is an important elass of eases in whieh a middle 

eourso" taken bot.een the common rule of unauahfio. 

!!, bilitv for one's statements, and the exceptional 

th kinds of statements eovorod by them. In man 
d ons of lif= the law deems it politic and necessarj 
"let the honest expression of opinion eoneerning the 
el ac e and merits of persons, to the e.te^nt appropnat;^ 
t ho nature of the occasion, but doe. not deem .. 
™," to prevent the person alfeet«l from showing. 
LE he can, th t an unfavourable opinion expressed eon- 
In ng 1 im is not honest. Occasions of this kin a 

■^ to be privileged, and eommunications made .. 
' e of t^ duty or right incident to them are said 

pursuance of the duty or fe "nualilied 

to be privileged by the occasion, ihe t.rm qu 
priv lege" is often used to mark the requirement o good 
t i h in such cases, in contrast to the eases of "absoluU^ 
Si 1" above mentioned. Fair reports of judi .a 
' Siamentary proceedings are put by the a cs 
authorities in the same category. Such reports must b 
r and substantially correct in fact to begin with a. 
lo must not be published from motives ot pe .enal 
-wUl and th/ although the matter reported wa. 
"absolutely privileged " as to the original utteranoe of it. 

(«) ChMerton v. Secmtiiry of 
Sm, /»r l«dia i„ Council 

[1895] 2 Q. B. 189, 64 I- •'• 
Q. B. 676, C. A. 



The condition, of i™n.„„ity may bo thus summed Ccdi- 

* tions of 

Tho occasion must be " ^ i 1 ,- 1 i„ , . [hoprivi- 

esttthfi.h»» fk u • ' "''-"-: andjiihe defendant ''«'■ 
estabhshes th.s, ho wii .,ct te li„l„o ualess the plaintiff 

.ocial duty, or wuh a v.ow to tho just protection of some 
pn,a,o .ntorest or of the public go™, by giving informa- 
tion .appearing proper to be given, but from some improper 
motue an ..thout due regard to truth; in short tha 
it was malicious. 

Such proof may consist cither in external evi lonoe of per- 
Isonahl-fcehng or disregard of the truth of the matter L 
or :n tho manner or terms of tho <«mmunic.tion, or act^ 
accon,pa„y,ng and giving point to it, being unreasonable 
and .„,proper, " m excess of the occasion," as we say 
It must be remembered that what is called " excess of 
he occasmn ' or "excess of priviloge" is not a distinct 
g ou,«l for rebutting tho defcnc. of privilege, but is „nlv 
M .denoo of mahco; if it is not sufficient evidence of thai 
It 4s nothing, and a finding that there ha. be-on " excess • 
;>^tnout a finding that there has b»n malice is of n„ 

Tho rule formerly was, and still sometimes is, expressed " E,pre«. 


(0 The burden of proof is not 
«n Hie defendant to show lus 
good faith: Ctari v. Jl!vlj,„cm: 
(1877) 3 Q. I). Div. 237, 47 L J 
<!■ U. 230; Jeno„rc v. S,./,„c^, 
[1891] A. C. 73, 60 L. J. l> c 
11, J. C. Thi,, however, is or 
ought to bo elementary, 

(") As to tho admission of 
■lolements made by tho defon- 
<lanl after the publication which 

ia tho cause of action, sen Ilcm- 
miiHi, V. G«,Bon (1858) E B & 
E- 31G, 27 L. J. Q. u. 252, aj 
H. K. 609. 

(*> ■'li'*^. v.. eiiis -Mt, 4c. 

Imurauce Co. [1895] 2 Q B 
150, 61 L. J. Q. B. 681, C. A. 
Tile If, L. dismissed an appeal on 
the shorter ground that there was 
no libel at all, [1897] A. C 68 
60 L. J. Q. B. 195. ' 

f I 

T 2 



in m artificial manner derived from the rtyle of pleading 
at common law. 

■ Tbo law, it is said, p.*«umca or implies malice m all 
icases of defamatory words; this presumption may be re- 
"^'^rXJ'' buttefl by showing that the words wero uttctod on a 
liilAr^privilegi occasion; but after this the plamt.ff may aUego 
T^lS^and pr!« express or actual mali<«, that is, wrong moUv. 
/ '-" Ho need not prove malice in the first instance, because th. 
law presumes it; when the presumption is removed the 
field is BtiU open to proof. But the ' malice m law 
which wa. said to be presumed is not the same as the 
"express malice" which is matter of proof To have a 
lawful occasion and abuse it may be as bad as doing 
harm without any lawful occasion, or worse; but it 
U a different thing in substance. It is better to say 
that where there is a duty, though of imperfect obligation, 
or a' right, though not nnswering to any legal duty, to. 
oommunicate matter of a certain kind, a person acting on 
that occasion in discharge of the duty or exercise of the 
right incurs no liability, and the burden of proof is ou 
those who allege that ho was not so acting (y). 

W .re The occasions giving rise to privileged communications 
JSSegcl ^ i„ matters of legal or social duty, as where a con- 

'^'°°"- fidential report is made to an official superior, or in ho 
common ease of giving a character to a servant; or Ih. 
Lmunieations may be in th« way of self ^efenc. or the 
defence of an intei^t common to those between who 
the words or writing pass; or they may be addressed 
persons in public authority with a view to the exercise .i 
their authority for the public good; they may also be 

(y) S« p«r Lord Blwkburn, 7 App. Ca. 787. 


matter published in the ordinary sense of the word for 
purposes of general information. 

As to oeea«iona of private duty: tlio rosult of the M<.„u»r 
authorities appears to be that any state of facts making T!^ 
It right in the interests of soeiety for one person to eom- 
munieate to another what he believes or has heard 
regarding any person's eonduet or character will constitute 
a privileged occasion («). 

Answers to confidential inquiries, or to any inquiries 
made in the course of affairs for a reasonable purpose 
are clearly privileged. So are communications made by 
a person to one to whom it is his especial duty to give 
information by virtue of a standing relation between 
them, as by a solicitor to his client about the soundness 
of a security, by a father to his daughter of full ago 
about the character and standing of a suitor, and the 
like. Statements made without request and apart from 
any special relation of confidence may or may not be 
privileged according to the circumstances; but it cannot 
be prudently assumed that they will bo (a). The nature 
f the interest for the sake of which the communication 
ks made (as whether it bo public or private, whether it i, 
one touching the preservation of life, honour, or morals 
or only matters of ordinary business), the apparent 
.importance and urgency of the occasion, and other such 
jpoints of discretion for which no general rule can ho 
^aid down, will all have their weight; how far any of 
them will outweigh the general presumption against 

Cs) See per ijlackburn J. in 
Dniei V. Snead (1870) L. B 5 
Q. B. at p. 611. 

(") Cases of this Jiind liave been 
»ery troublesome. See Blalio 
Odgors, 263—270. Tile recent 

tendency seems to be rather to 
tnlnrge than to restrict the scope 
ht social duty: Sluarl v. Sell 
[1891] 2 Q. B. 341, 60 L. J 
Q. B. 677, C. A.; Odgers, 248. 




he 11101-0 or 


tion for 


officious intorforciico must ahvays 
doubtful (6). 

Examples of privilcgwl communications in self-protec- 
tion or the protection of a common intorost, aro a earning 
Wiven by a master to bis servants not to associato witb a 
former fellow-servant ^vliom he has discharged on he 
W,ound of dishonesty (c); a letter from a creditor ot a 
Tim, in liiiuidation to another of Hie crcslitors, conveying 
information and ^van,ing as to the conduct of a member 
of the debtor llvn, in it. aiVairs d, . The privilege ot an 
occasion of legitimalo self-interest e^^tends to a so icitor 
writing as an interested party's solicitor in the ordinary 
eourse of his duty(e). The holder of a public o hce, 
when an attack is publicly made on his oihcial conduct, 
may defend himself with the like publicity (/j . 

Communications addressed in good faith to persons 
in a public position for the purpose of giving them ..- 
formation to be used for the redress of grievances, t „■ 
punishment of crime, or the security of public m.Tals. 
Lo in like manner privileged, provided the subjec - 
matter is within the eompeteiice of the person ad- 
dressed (»). The communication to an incunik^.t o! 

, J. (J. li. 399, 

(6) See Coxheai v. Iticlmrdl 
(18i6)2C. l!.569, 15L.J.C.P. 
278, 09 K. R. 530, where the 
Court WHS eiiually divia«d, rather 
aa to the reaaonably appafoni 
urgency of the particular i)cca.,ioii 
than on any Jelinable principle- 
(c) Homirvillc v. Uaiikim 
(1850) 10 "C. B. 581), 20 L. J. 
C. P. 131, 81 R. R. 70i>- 

(rf) Si><ll V. MavU (1869) En. 
Ch. L. B. i E!t- 232, 38 L. 3. 
Ex. 138. 

(<,) Bake, V. CarrM 11894J 1 

(J. B. 838, 63 Ij. 
C. .V. 

(/) I.auijhlon V. HUUp of 
Hodo,- nil Man (1872) L. I!. 1 
P C. 495, 42 L. J. P- C. H. 

(.,) Uuiimi-y. BaA (1856) 
5 E. 4: B. 344, 25 !- J- 
Q. I). 25, 103 11. R. 507. 
Mere belief that the periun ail- 
iiroi5oa is officially competent «ill 
not do: lleliditch v. 
[1894] 2 Q. B. 64, 63 L. J. Q. »• 
68V, C. A. In Ilurrh^n v. im*, 
]iov,ever, it w:is !icM tliat it >s! 


reports affecting the cliaiuctcr of liis curate is privifcged, 
at all eveuts if made by a neighbour or parishionor" so 
ato consultations bcttteon the clergy of tho immodiate 
neighbourhood arising out of the same matter (/i). 

Fair reporU (as distinguished from comments) arc a Fnir 
distinct class of publications enjoying tiie protection of '"""'• 
"qualilied privilege' to the cxU'nt to be mentioned. 
The fact that inipulations have been made on a privifcged 
occasion will, of course, not exempt from liability a ]ierson 
who repeats them on an occasion not privileged. Even 
if tlie original statement be made with circumstances of 
publicity, and be of the kind known as "absolutely 
privilegcil," it cannot be stated as a general rule that 
republication is justiliable. Certain speciflc immunities 
have been ordained by modern decisions and statutes. 
They rest on particular grounds, and are not to be 
e.Ytended(»;. Matter not coming under any of them 
must stand on its own merits, if it can, as a fair com- 
ment on a subject of public interest. 

By statute (3 & 4 Vict. c. 9, ,v.d. 1840) the publication Mm. 

(jf any reports, papers, votes, or proceedings of cither """""'y 

House of Parliament by the order or under the authorily '"'""' 
of that House is absolutely protected, and so is the 

aot, in fact, irrpj^ular to aJdres.'* a 
memorial fomplaininjj of tile con- 
duct of a ju.-!tice of tiie peace to 
!i Secretary of Stale (see tlio 
judgment of tlic Court as to tlio 
ini-idents of that office), tiiou^Ii 
it would Ic more i3ual to address 
such u memorial to the Lord 
Chancellor. Complaints made to 
the Privy Council against an 
offiror whom the Council is by 
statute empowered to remove are 
in this catojory; the absolute 

privile;*e of judicial proceeding's 
cannot be claimed for them, 
f huu^'h the power in question may 
be exercisable only on inquiry; 
I'roclor V. ll'rlinUr (1885) 16 Q. 
B. D. U2, 55 L. J. Q. I). 150. 

(A) CInrh V. Molijmuz (1877) 
3 (J. li. Div. 237, i^ h. J. Q. B. 

(i) See Duvla v. S/irpsiniir 
(ismj J. C. 11 App. Ca. 187, 
55 L. J. P. C. 51. 



and judi' 
eial pro- 

•epublication in full. Extracts and abstracts are pro- 
fteoted if in the opinion of the jury they were pubUshed 
bonit fide and without malice (fe)- 

Fail- reports of parliamentary and public judicial pro- 
ceedings aio treated as privileged communications. It 
has long been settled (I) that fair ai.d substantially 
accurate reports of proceedings in courts of justice an- 
on this footing. As late as 1868 it was decided (wi) that 
the same measure of immunity extends to reporU of 
parliamentary debates, notwithstanding that proceedings 
in Parliament are technically not public, and, stiU later, 
that it extends to fair reports of the quasi-judicial 
proceedings of a body established for public purposes, 
und invested with quasi-judicial authority for effecting 
those purposes (n). In the case of judicial proceedings 
it is immaterial whether they are preliminary or final 
(provided that they are such as wUl lead to some final 
decision) (o), and whether contested or ra parte (o), and 
also whether the Court actually has jurisdiction or not. 
: providing that it is acting in an apparently regular 
■ manner (p). The report need not be a report of tho 

(ft) See Blake Odgers, op. cit. 
338. The words of tho Act, in 
theip literal construction, appear 
to throw the burden ol proving 
good faith on the publisher, 
which probably was not intended. 
tJnder this enactment (a. 3) the 
authority of either House is not 
required: Mangena v. Wright 
[1909] 1 K. B. 958, 78 L. J. K. 
B. 879. 

(0 Per Cur. in Waion i. 

Walter, L. K. 4 Q. B. at p. 87. 
(m) JKatial T-^HTa/itr, L. H. 

4 Q. B, 73, 38 L. J. Q. B. 34. 

And editorial commenta on a 

debate published by the same 
newspaper which publishes tho 
report are entitled to tho benefit 
of the general rule as to fair com- 
ment on public affairs: tfi. Cp. 
the German Federal Constitution, 
arts. 22, 30. 

(n) Allbutt V. General Coun- 
cil of Medical Education (1889) 
23 Q. B. Div. 400, 38 L. J. Q. B. 

(o) Kimber y. Fresi Aiiocia- 
tion [1893] 1 Q. B. 65, 62 L. J. 
Q. B. 162, C. A. 

(p) Veill y. nalei (1878) 3 
C. P. D. 319, 45 L.. J. CJ. P. 323, 


whole proceedings, provided it gives a fiir and sub- 
stantially complete account of the case; but whether 
It does give such an account has been thought to be 
a pure question of fact, even if the part which is 
separately reported be a judgment purporting to state 
the facts (g). The report must not in any caso bo 
partial to the extent of misrepresenting the judgment (r^ 
It may be libellous to publish oven a correct extract from 
a register of judgments in such a way as to suggest that a 
judgment is outstanding when it is in fact satisfied (s^ 
But a correct copy of a document open to the public is 
not libellous without some such further defamatorv 
addition (0 . By statute " a fair and accurate report in 
any newspaper of proceedings publicly facai-d before any 
court exercising judicial authority" is, "if published 
contemporaneously with such proceedings," privilo<^>d 
Unless this means absolutely privileged, which is known 
not to have been the intention of the Legislature in fact 
the enactment would seem to bo only a not quite accurat^ 
affirmance of the common law (a). The rule does not 


where the proceeding reported 
was an application to a police 
magistrate, who, after hearing 
the facta slated, declined to act 
on the ground of want of juris- 
lion: lewis v. Limj (1838) E. 
B. i E. 537, 27 L. J. Q. B. 282 
113 R. K. 768. 

(?) Macdnutfalt v. Knifffit 
(1889) U App. Ca. 194, 68 L. J. 
Q. B. 537. But in Macdougalt 
V. Knir/lu (1890) 25 Q. B. Div. 
1, 59 L. J. Q. B. 517, the C. A. 
adhered .o their previous view 
(IV Q. B. Div. 630, action be- 
tween same parties) that a cor- 
rect report of a judgment ii 

(r) llayujard j Co. v. Il,„j- 
itard i Son (1886) 34 Ch. D. 

198; 56 L. J. Ch. 287. 

(*) Wiltiams v. Smith (1888) 
22 Q. B. D. 134, 58 L. J. Q. B. 

(0 ScarteB v. Scarlett [18921 
2 Q. B. 56, 61 L. J. Q. B. 573, 
C. A., where the publication was 
expressly guarded: qu. as to W«- 
liama v. Smith, see [1892] 2 Q. 
B. at pp. 62, 63, 64. 

(») 51 4 52 Vict. c. 64, s. 3, 
see Blake Odgers, 324, 325. The 
earlier cases arc still material to 
show what is a fair and accurate 
report. The words "contempo- 
raneously with such proceedings " 
are, strictly speaking, jonscnae; 
they mu;t mean within a reason- 
able and usual time after the date 
of the proceedings. 

m. , 





oxtend to justify tho reproduction of matter in itoolf 
obscene, or otherwise unfit for general pubhQation(x), or 
of proceedings of which the publication is forbidden by 
the Court in which they took pkco. The burden of proof 
is on tho defendant to show tlmt tho report is fait ajid 
accurate. But if it really is so, the phintiBs own 
evidence will often prove that .the facte happened as 
reported (;/). 

\n ordinary newspaper report furnislied by a regular 
reporter is all but conclusively presumed, if in fact fair 
and substantially correct, to have been published in good 
faith; but w outsider who sends to a public print even 
a fair report of judicial proceedings containing personal 
imputations invites the question whether he sent it 
• honestly for purposes of information, or from a motive of 
personal hostility; if the latter is found to be tho fact, h- 
lis liable to an action (z). . 

Newspaper reports of public mc'tings and of 
of vestries, town council, and other local authorities, and 
of their committees, of royal or parliamentary commis- 
sions, and of select committees, are privileged under the 
Law of Libel Amendment Act, 1888(a). A public 
meeting is for this purpose "any meeting bona fide ^nd 
lawfully held for a lawful purpose, and for the further- 
ance or discussion of any matter of pubMc concern, 
whether the admission thereto bo general or rostrictccl. 
Tlio defendant must not have refused on request to 
insert in the same newspaper a rc-asonable contradRf..... 
or explanation . Moreover ■ the publication of any mad cr 

L. R. 

Steele v. Itralimn (1872) 

5 Ex. Div. 53, 49 L. J. H- H- 

7 C. P. 2(J1 (a criminal 120 

case) ; 51 & 52 Vict 
(y) Kimber V. I 
Urn, [1893] 1 Q. B- 65, C 

(,,) 51 .t 

; Vict. c. Ul, 

',e„ Auocia- As to bo-inl' <>' «""" 

12 T.. .T. rUtiird V. Oliver 

ri8911 1 Q. !!■ 

Q. B. 152, C. A. 

, 60 I.. J. «. B. 219, f. 

Simpton (1879) 


not of public concern, and the publication of ivUich is not 
for tlm public bcuofit," i, not protected (i) . 

In tlie caw of privileged communications of a con- E.c«,„f 
lldQUtial kind, the failure to use ordinary means of ''"''''"'■•■ 
ensuring privacy -as if the malt,.r is sent on a post- 
™rd (C-; msteud of in a .c.led letter, or telegraphed 
without evident necessit,, ,,,11 ,|eslroy the privilege- 
le.thor as evidence of «,uli„, or boeauso it constitutes a 
publication to persons in respect of whom thero was not 
any privilege at all. The latter vie,, s.enis on principle 
the better one (d). But the privilege of a person making 
a statement as matter of public duty at a meeting of a , 
public body is not affected by unprivileged pers'ons bein^ </■ <^iA.^ 
present who aie not there at his individual request or ^ /b ^ ^V- 
idesire, or in any way under his individual control, 
•though they may not have anj- strict right to be there 
newspaper reporters for exampt (c). It is now decided 
Ihat if a communication intended to bo made on a 
privikged occasion is by the sender s ignoruuco (as by 
making it to persons whom he thinks to have some dut'v 
or interest in the matter, but who havo none), or mere 
negligence (as by putting letters in wrong envelopes; 
delivered to a person who is a stranger to that occasion 
the sender has not any benefit of privilege (/) . 

1 61 51 & 52 Vict. c. (il, jj. 4. 
Ill a civil action on ,vliolu ia tlic 
Lurden of proof as to this 'i Qu. 
»«uld " and " bo road, it ncces- 
«if.v, as " or " ? See Ulokc 
Odgers, 334, 335. 

:.c) Provided tliat tlio jjojl-card 
conveys on tlio face of it a mcan- 
mg detamali ry to the plaintiff. 
Othcrwiso if thn rofcrcnco to 
kim is intoUigililo only to the 
addressee. Hadgrove v. hole 
[1901] 2 K. B. 1, 70 L. J. K. B. 

393, 43 

455, C. \, Qntere as to writin(? 
on a post-card in a more or loss 
generally understood foreign 

(1874) L. U. 9 (.'. 1' 
L. J. V. P. Id. 

{e) iitiw<L.X.,.UlM;'r [1891 
1 Q- B. 474, 60 L. J. Q. B. 219 
U. A. 

(.') J/eMil.~k V. J/„f7;,:o;„( 

[I894]2Q. B. 51,63L. J. Q.B. 
587, C. A. 



belief in 
not Decce- 


Whore the oiistenoo of a privileged oocMion i» eatab- 
li.hed, we ha o seen that the plaintiff must give affirmative 
proof of malice, that is, dishonest or reckless ill-will (fl), 
in order to sucooed. It is not for the defendant to prove 
that his belief was founded on reasonable grounds, and 
there is no difference in this respect between different 
kinds of privileged communication (A). To constitute 
malice ther^ must be something more than the absence oi 
reasonable ground for belief in the matter communicated. 
That may be evidence of reckless disregard of truth, but 
is not always even such evidence. A man may be honrM 
and yet unreasonably credulous; or it may be proper ioi 
him to communicate reports or suspicions which ho him- 
self docs ii6t believe. In either case he is within the 
protection of the rule (i). It has been found difficult t.. 
impress ^i8tinction upon juries, and the involve.l 
language ol the authorities about "implied" and "ox- 
press " malice has, no doubt, added to the difficulty. TIk 
result is that the power of the Court to withhold a case 
from the jury on the ground of a total want of evidence 
has on this point been carried very far (fc). In theory, 
Jiowever, the relation of the Court to the jury is the same 
as in other questions of " mixed fact and law." Similar 
difficulties have been felt in the law of Negligence, as wo 
shall see under that head. 

(y) A atntement made recklesflly 

under the inauenco oj e.g. gros» 

: prejudice agiinst tlie plaintiB's 

occupation in general, tliough 

; witiiout any personal hoatility 

' towards liim, may be malicious: 

Itoyal Aquarium Societij T. Par- 

himon [1892] 1 Q. B. 431, 61 

L. J. Q. B. 409, C. A. 

(h) Jenoure ». Belmei/e [1891] 
A. C. 73, 60 L. J. 1'. <J. .11 
(J. C); Clark r. Molsneux 
(1877) 3 Q. B. Div. 237, 47 L. 

J. (1. B. 230. 

(i) Clark V. Molyneux (18771 
3 Q. B. Dir. 237, 47 L. J. Q. U. 
230, per Itramwell L. J. 3 Q. !'■ 
Div. at p. 244; per Brett L. .1. 
at pp. 247-248; per Cotton L. J. 
at p. 249. 

(*) Laughtan V. Bithop ol 
Sodor and Mar, (1872) L. I!. 4 
P. C. 495, 42 L. J. P. C. 11. 
and aulliorilies there cited ; ■■■/•'" 
y. Mault (1869) Ex. Ch. L. K. 
4 Ei. 232, 38 L. J. Ei. 138. 



"The «pirit and intention of tho party ate fit to be Powwof 
o<H»ide.wl by A jury in Mtimating tho injury done to the iSS^ 
plaintiff;" and ovidenoo of this is admissible, notwith- ''««••»• 
standing that it may disckeo another and different cause 
of action (J). 

j In anetsing damages tho jury "ar« entitled to look at 
jthe whole conduct of tho defendant from the time tho libel 
■wna published down to tho time they gave their verdict. 
■They may consider what his conduct has been before 
action, after action, and in Court during tho trial." And 
the verdict will not bo set aside on the ground of the 
damages being excessive, unless tho Court thinks the 
amount suoh as no twelve men could reasonably have 
given (m) . 

A misdirection on any material part of tho libel which 
might have influenced the jury in assessing damages is 
ground for a new trial. Tho Court cannot take on itself 
to say that the misdirection would not have had any 
influence merely because the Court thinks that the jury 
might still have reasonably given the same damages under 
proper direction (n). 

Lord CampbeU's Act (6 & 7 Vict. c. 96, ss. 1, 3), as Sp«ui 
iimended by 8 & 9 Vict. c. 75, contains special provisions i^SlS 
as to proving the offer of an apology in mitigation of for'new"" 
damages in actions for defamation, and payment into Fffi 
Court together with apology in actions for libel in a 
publio print (o). 

CO Pearson v. Lemaitre (1843) 
5 Man. Ji Gr. 700, 720, 63 K. R 

(>») fraeLx^atdium (1889) 
24 Q. B. Div. 63, 55, 69 L. J. 
Q. B. 230. 

(«) Sray V. Fiml [1836] A. C. 
«, 65 L. J. Q. B. 213. 

(o) The Rules of Court of 1875 
had the effect of enlarf^ing and so 
far superseding the latter provi- 
sion; but Bee now Order XXII. 
r. 1, and " The Annual Practice " 
thereon. See also HI k 52 Vict. 
0. 64, a. 6. '■' Inserting an apology 
means effectually inserting it," 



Ltoluni Whcr.1 tiKinny Ims Urn pniJ into Court in an action 
^S" (for libel, tlu) iiliiintiR is not nntitW to interrogate the 
S?*?" '" defendant as to the souroos of his information or tho means 
nscd to verity it [p, . 

Itadrn".- A pkintifls general bad repute eannot bo pleaded n- 

not dircTtlv material to the issue, but con be proved onl^ 
in mitigation of damages ,rj\ and then when jusli- 
lieation has beun pleaded 'j' . 

Wo have already »-im (»i that an injunotion may lie 
granted to restrain the publication of defamatory matter, 
but, on an interlocutory application, only in a clear 
ease '<}. and not where <he lil)el complained of is tm the 
iaco of it too stom aui-absurd to do tho plaintilf aii.v 
matctial harn. (h). Casea of this last kind may bo nier • 
fitly dealt with by criminal prmwedings. 


' a^^k'fr 


■ee 7,o/o>i« V. Umlth (1858) 3 II. 
ft ^f. 73S, 28 L. J. Ex. 33, 117 
K. K. 959. Tlio iiluintitt i« on- 
litlod til tho sum imiJ hit i Oiurt 
even it tho finding "f thu jury i« 
leu fiiKiurublo tci liiiu: ''«"•• "• 
/),.,„«, .)c. Cv. LI895] 1 li. B. 
211, "., 63 L. J. Q. B. 342. 

(,,) VarnM V. Waller (1890) 
21 Q. B. I>. -111. 52 L- J. '1- B. 
125. See further as to tlio limits 
of interrogatories, iVItitUik'r v. 
Scarlwmi'jh I'ott Xen-^paprr 
Co. [1896J 2 (J. B. H», 65 L. J. 
Q. B. 564, C. A., overruling /'nr- 
nell V. Wi'ltrr on another point ; 
Elliott y. 6'oi-r«(i [1902J 1 K.B. 
871), 71 L. J. K. B. 415, C. A.; 
White # Co. V. Credit Eeform 
A„oci%. [19051 1 K. n. 6.53, 74 
L. J. K. B. 122, riijuiiitttli 

MiUtinl ^o. Soc. V. Traders' t'lil" 
liMiic, .UiocH. [1906J 1 K. 11. 
403, 75 L. J. K. B. 259, both in 
(1. A. 

{(I) n'ood V. Ihtrham (18«Si 
21 tj. B. D. 501, 57 L. J. Q. H 

(r) ,ScoU_y^Jiimi>"i» (1""-' 

8 (J, B. D. 49i, 502, 50.>. 

(«) lioiinird V. rerriji'itht 
[1891J 2 Ch. 269, Ul) I.. .1. 'h- 
617, C. A. p. 198, above: (or a 
later esamplo of injunitioii 
granteil, see Cotl'ird v. Ma,^':<:'l 
11892] 1 Ch. 571, 61 I.. .1. I'll. 

(0 Botimrd v. Perrymuii. la»l 


(k) Halomont v. A'/ej''' 
[18811 2 Si. 294, 60 T„ .!. Ih. 
743, C. A. . 




In tho foregoiug clmptors .dealt with wrong, affecting N..™ 
ho «,-callod p,....,ary rights to„^urity for a man', po«„n "' '-' 
U, tho cn.,oy„,ent of tho society and ol«Jionec of hi, °" 
family, and to his reputation and good nam.. I„ th..^ 
ca«», exceptional conditions oxeepted, tl,o kno«l,,l.o or 
«tato of mind of tho person violating th. right il not 
material for detormining his legal res,,on»il,ilitv This is 

tho old-fashioned use of the word "nKilieo" notwith- 
Munding. W3 now eon,„ to a kind of wrong., in which 
ether a positive wrongful intention, or such ignorance or 
mdiflerence as an>ouiit« to guilty rrcklessnoss (in Eoman 
terms either M,s or c<lpa lata) is a n,.eessarv el,.menf 
»o that liability is foundetl not in an absolute right of the 
plaintiff, but in the unrighteousness of tho defendant. 

damage by wilfully or i-eeklessly causing him to h-lieve r''"™' 
-d act on a falsehood. It i. a cause ff action bv t" :'™- 
common law (tho action bcung an action on the" ease J^^i^ 

need on the ancient writ of deceit („), which had a 
much nan.ower scope): and it has likewise been dealt with 
(«) F. N. B. 95 E. .fj. 

tiea of the 
iubject : 
tion with 


by oourte of equity under the general jurisdiction of the 
Chancery in matters 6i fraud. The principles worked out 
in the two jurisdictions are believed to be identical (6), 
though there may bo a theoretical difierenoe as to the 
character of the remedy, which in the Court of Chancery 
did not purport to be damages but restitution (c). Since 
1875, therefore, wo have in this case a real and perfect 
fusion of rules of common law and equity which formerly 
were distinct, though parallel and similar. 

The subject has been one of considerable difficulty for 

several reasons. .v »i,„ 

First the law of tort is here much complicated with the 
haw of contract. A false statement may be the inducement 
to a contract, or may be part of a contract, and in theso 
capacities may give rise to a claim for the rescission of 
the contract obtained by its means, or for compensation 
for breach of the contract or of a collateral warranty A 
false stdtemont unconnected with any contract may like- 
wise create, by way of estoppel, an obligation analogous to 
contract. And a statement capable of being regarded 
in one or more of these ways may at the same time afford 
a cause of action in tort for deceit. "If, l^^lTt 
thinks it highly probable that a thing exists, he ohoo«^ to 
«ay ho knows the thing exists, that is really asserting 
wbat is false: it is positive fraud. That has been re- 
peatedly laid down. ... If you choose to say and sa, 
without inquiry. 'I warrant that,' that is a contract. It 
~y. ' I know it.' and if you say that in order to save 
[ho trouble of inquiring, that is a faUe «pr«cntaticu 
-you are saying what is false to induce them to act 
upon it" (d). 

(4) See pet Lord Chelmlford, 
L. R. 6 H. L. «t p. 3M- 
(o) See p. 199, above. 

(d1 Lord Blaokbutn, Bnm- 
(« T. CampbM (1880) 5 .^pp. 
Cm. (Sc.) at p. 953. 


TLogroum "-d results of these forms of liabilitv ,„•„ 
largely sim lar, but cannnt k„ , "*""«? "ire 

u;n,n..t * ™*» used to be cited 

of another wh.oh did not proceed from anv set Zl 
to deeexve but perhaps from an unfounded 0^1 
hat what he stated or suggested would bo mZ 
the event. n such a ea« it seems hard that theTartv 
..sled should not have a remedy, and yet there i .om ' 

dece t An over-sanguine and eareloss man may do as 

;o-. u.yint.^:tt^z-;:t:i- 

bo founded on fraud F„,„f„ • i . 



.amtam and extend a righteous and bon;fioiar i ! 

stru L f Z. ''^T '""" '•™^-'"» Phr-s a, "con- 
ructne fraud," or "conduct fraudulent in the .vos of 

« W<»r. The results were good, but, Ix-ing s„ 






not ire. from «o,n.. danger of cxo»s. ^'oP'^/'^^ft j,^ 
an objectionable tenn. but it doe, not ^o^^^J^^'^ '^^^ 
no re I meaning (.). One might a« well sa> that he 
•■eommon counts ' for money had and received, and the 
like Thich before the Judicature Acts were annexed o 
li deeWion. in contract, ^^^YV;^r2^^ 
action because the "contract implied in law whiM, 
C^^pposed was not founded on any actual request o, 

promis2 . 

Thirdly, special difficulties of the same kind have ari.,, 

kvirrega d'to false statements made by an agent ui tl. 

r,l of his business and for his principal's purposes. 

fc "i lou ox^ress authority to make such statement. 

UndeT et c nditions it ha« been thought harsh to hol.l 

Thf o inlal answerable: and there is a further aggrava- 
tn fTffiLlt.v in that class of cases (perhaps the mos 

Zdutnt i tltti. We have already touched on tl>. 
nointm- and the other difficulties appear to have V n 
rmouirt to he in the way of being surmounted, bv 

our modern authontie*. 
^. Having indicated the kind of problems to bo met wi,.,. 

— ■ .e proceed to the 0. H- _^^_^^^ ^ , ^ 

right of To create a riglit ot aetion loi u..i, 


T.,r,l lliomm-U, diffl>umM may be Mill t.. I.avf 

(,) Sc. por Lord .n,«Ul, _^,^ .^ „,„ ,. .,„,„„ 

ir„V V. Be'l. 3 1.^. 1). »> 1 ; ■'"• , „ ^ n. 172. 33 L. J. 

Dm, V. /'.rl, U Ap,,. ( ... at OMU 7 ^^^ ^^ ^ ^^^ ^^^^^ 

"■Jfp^,. 01. ,i2. nl.,.vc. TlK. thaCour't -a, equally divided. 


statement made by the defendant, or for which he is 

aTtTo'S '".-"°""';.'-'» -«> -^"d ^ that .tatel 
all the followmg conditions must concur: 

I (a) It is untrue in fact. 

(b) The person making the statement, or the ,«rso„ 

responsible for it, either knows it to be untrue 
or IS culpably ignorant (that is, recklesslv and 
consciously ignorant) {g) whether it be ti'ue or 

(c) It is madeto the intent that the plaintiff shall act 

upon It ju: ,n a manner apparently fitted to 
induce tun to act upon it (A) 

(d) The plaintiff does act in reliance on the statement 

in the manner contemplated or manifestly , o- 
bablc, ajBd thereby suffers damage (,). ' 

actual damage, or the damage is the gist of the action (/) 

Andaccordingto thegeneralprinciplesof civiUiabil ty! 
he damage must bo the natural and probable consequent 

statSent ' ""™ "" '"^ '""' "' "'" -^^f™"-'" 

•e) The statement must be£ »nd signed in 
one class of cases, namely, amounte to 
a j^miranty: but this requirement-is statutory 


(y) Lord Herschell, Dcrru v 
'"'rf (1889) 14 App. Ca. at 
p. 371. 

(*) .Sm PolhUl V. Ilaller 
(1832) 3 B. i Xi. 114. 123, 37 
B- R. 344, 351. 

(•) Cp. for the general rules 
W Hatherley (I-at-o Wood 
v--t.), B„„!/ V. Cro,k«,i (1861) 
I^J.iH. atpp, 22-3, approved 
7 ""• <''»'r'M in Peek v 
ff«'"«y,L.K.6H. l,.atp.413■ 

Bowen L. J., Edginatm, v. f,,-- 
maurice (1885) 28 Cli. Di, ot 
pp. 481-2 i and Lindley L. J., 
Smilh T. Chadwioh (1882) 20 Cli ' 
D'v. at p. 75. 

(*) Derr^ v. Peek (1889) 14 
App. Ca. 337, 374, 58 L. J CI, 

(0 Lord Blackburn, Smith v 
C*»rf«-,H- (1884) 9 App. Co. ot 
p. l<Jli. 

l! i 





in fact. 

and a« it did not apply to the Court of Chancery 
does not seem to apply to the High Court of 
Justice in its purely equitable jurisdiction. 
Of these heads in order. 

(a) A statement can be untrue in fact Qjjf if it pur- 
p„ U to state matter of fact. Apromise is distinct frorn 
I statement of fact, and breach of contract, whether from 
want of power or of will to perform one s promise, is . 
different thing from deceit. Again, a mere statement t 
olinion or inLence, the facts on which it pu^rts to be 
Inded being notorious or equally known .0 ^ part- 
is different from a statement importing that cer a , 
matters of fact are within the particuUr k-w'odgc ot 
the speaker. A man cannot hold mo to -^'"""'^ - 
he has lost money by following me in an opinion wh,.h 
turned out to bo erroneous. In particular cases, ho«x.., . 
it may be Imrd to draw the line between a mere oxpression 
of opinion and an assertion of speciBc fact(m). Am a 
man's intention or purpose at a given time is m itscU a 
matter of fuct, and capable (though the proof be s.ldon, 
,™sv) of being found as a fact. •'The state of a .nan . 
I mind is as much a fact 0. the state of his digestion « . 
It is settled that the vendor of goods can rcscmd t.h.. .on- 
tract on the ground of fraud if he discovers wit nn .lu. 
time that the buyer intended not to pay the price (0) . 

(„,) Compare riilo'j v. FrM- 
„»,. (1789)3 1. K. 51, IR.B. 
634, with Har/cia/t v. rr,«t„ 
(1801) 2 East 92, 6 R. K. 380, 
where Lord Konyon's dissenting 
judgment m»y bo more acccptablo 
to the latter-day reader than 

those o( the majority. 

(„; Bowen L. J., 29 Ch. Div. 


Co. (1871) E». Cli. L. R. 7 Es. 

ie, 41 L. J. Ex. 17; cp- P"' 
Mcllish L. J., ExiMiii' lll'l- 
h^er (1875) L. H. 10 I'h. at 
p. 449. On principle on action "I 
deceit should also lie; bat this i* 
a Bpcoulativo question, as iS ro- 
seisaion is impracticable, and i( 
the fraudulent buyer is MOrth 
suing, the obviously better conn- 
is to sue on the contract far tlio 
price. See however U'illiaiii'O' 
V. Allium (1S02) 2 East 4<li. 


When a prospectus is issued to 8liarel>older8 in a 
company » the like to invite subeoriptions to a o^„ I 

m other words, of the borrower's intention as to iu 
apphcataon-^ a material statement of fact, and if untrl^ 
-av be ground for an aetion of deceit (p. Theslt 
pnncple would seem to appl, to u man's su emoat ofT 
reasons for h.s conduct, .if intended or «.kulated to iL 
once the conduct of those with whom ho is dealing (,) 1 

thin r*""^'' '" """ '^'^'y — • -' - oiy 

.m t of ,., authority, a sum lower than that which he is 
reoUy empowered to deal for. 


man's private rights, Mi»-^ie 

A representation concerning a man's 
though it may involve matters of law 
Ideemed to be a statement of fact. When, officers of a 
company .ncorporated by a private Act of Parliament 
accept a b.U .n the name of the compa,,v, this is a r^ 
sentation that they have power so to do under the A^rf 
ParUament, and the existence or nonexistence of such 
power IS a matter of fact. " Suppose I were to say I have 
a private Act of Parliament which gives me power o d 

It'of Pari "iw ■" '"""''" "^^ ' •-- -«'' - 
Act of Parliament? It appears to me to be as much a 

representation of a matter of fact as if I had said I hav,. 

a particular bound copy of Johnson's Dictionarv " (r^ 

whole of law. 

(p) Bdgingtott v. Fitzmaurice 
(1884) 29 Ch. Div. 459, 55 L J 
Cb. 650. 

(?) 11 i» Bubmitled that tho 
wnlrapy opinion given in Vernon 
'• A'<y. (1810) Ei. Ch. 4 Taunt 
JM, 11 R. B. 499, can no longer 

*. ^nsidered law: ^ n R. R. ,a„ertio„ of .ubsirt 
'* aT;'-5'„f ""■ '^""'^«"'" ''» -- ^"-.u-) 

(r) Wat London CommercM 
Bank V. KiUon (1884) 13 Q ]1 
Div. 360, per Bowen L. J. „,' 
p. 363, 53 L. J. Q. B. 345. Cp. 
EilJani'l £xa:iUoa v. Hum- 
tilfnt (1886) 18 Q. B. Div 64 
56 L. J. Q. B. 57 (director.' 
assertion of subsisting authority 



A statement about the exUtcn«= or actual text of a public 
Aet of Parliament, or a reported decision, would seem to 
be no IcsB a statement of fact. With regard to statements 
of matters of general law made only by implication, or 
statements of pure propositions of the law, the rule may 
perhaps be this, that in dealings between parties who 
have equal means of ascertaining the law, the one w.l 
not be presumed to rely upon a statement of matter o 
law made by the other (,). It has never been deeuW 
whether proof of such reliance is admissible; it is sub- 
mitted that if the case axose it could be received, though 
with caution. Of course a man will not in any event bo 
liable to an action of deceit for misleading another by a 
statement of l.w, however erroneous, which at the tune 
he reaUy believed to be correct. That «>* wouU full 
into the general category of honest *ough m.stak™ 
expressions ,.f opinion. If there be any ground of UabiUt.v 
it is not fraud but negligence, and it must be shown that 
the duty of giving competent advice has been assumed or 
accepted , 

« , w It remains to be noted that a statement of which every 

*;'|S5S^ p„t is literally true may be false ^ a whole, if by «.a,o„ 

Sa. of the omission of material facte it is as a whole calculated 

to mislead a person ignorant of those facts into an .n- 

ference contrary to the truth («). " -^ suppression of th^ 

truth mav amount to a suggestion of falsehood {n). 

(») This appears to be the real 
ground of Xa,hda!l v. Foril 
(1866) L. R. 2 Eq. 750, 35 L. J. 
Ch. 769. 

(I) " There mmt, in my opinion, 

' fact, or at all events such a par- 
tial and fragmontarj- statement 

pf tact as that the williholdinit of 
that which is not stated mata 
Ihat which is stated absnluldy 
false: " Lord Cairns, L. H. li H. 
L. 103. 

(u) Stewart v. iryr'mn,} 
E„nch« Co. (18R«) 121 U. S. 383, 



(b) As to tho knowledge aud l,.lief of the person Know- 
making thostutenicnt. led|j,or 

He maj: believe it to be true ,^, . I„ that case he ^^"t- 
incur, noJittbilit^-, nor h he bom„l to show tlmt his 
belief was founded on such grounds as would produce tho 
same belief in a prudent and co„,pot,.„t man (y), oumt so 
tar as the absence of reasonable cause may tend to the 
■inference that there was not any i^l belief. .Vn honest 
hough dull man cinnot be held guilty of fraud anj more 
than of e..pi^s malioe," although there is a point beyond 
which courts will not believe in honest stupidity • If 
an untrue statement is made," said Lord Cheiiusford, 
founded upon a belief which is desti. ute of all i^asonable 
grounds or which the least inquiry would immediutelv 
correct I do not see that it is not fairly and cori^etly 
charactei-iEcd as misrepresentation and deceit ' - ■ Lord 
Cranworth preferred to say that such circumstances'might 
be stning evidence, but only evident, that the statement 
was not really believed to lx> true, and any liubilitv of tho 
parties ' would be the consequei,™ not of their" having 
stated us true what they had not rea.onuble ground to 
believe to be true, but of th,.ir having stated as true what 
they did not ^lielieve to 1« true " („). Lord Cranwortli's 
opinion has been declared by the House of Lords (61 
.eversing the judgment of the Court of App..„l M to be 
the correct one. -The ground „p„„ ^hieh an ullo»,.d 

(i) t'ollim V. i'mi/j (1844) 
Kx- Ch. 5 (J. B. 820, 13 L. J 
<i- B. 180, 64 R. K. 636. Good 
and probable reason as woU as 
good faith was pleaded and 

(f) Taylor V. ./.<;<,„ (1843) 
U M. i VV. 401, 12 L. J. Ex 
»»,flSB. B. 035, buttheaetuai 
decision is not consistent with tho 
doctrine of the modern casM on 

tho duties of direstors of com- 
panies. See per l^ord Jlci-schcll, 
14 .Vpp. t'a. at p. 37,5. 

{-) U'etterit Bauh af .Scotland 
V. Addie (1867; L. R. 1 ge at 
p. 162. 

{<•) lb. at p. 168. 

(4) Derm v. Peek (1889) 14 
•Vpp. Ca. 337, 58 L. J. Ch. 864. 

■"' ''•"•'' "■ Jtfrry (1887) 37 
Ch. Div. 541, 37 L. J. Ch. 347. 


belief was founded" is allowed to bo "a most important, 
test of ito reaUty ■■ (d); but if it can be found a« a fact 
that a belief was really and honestly held, whether on 
reasonable grounds or not, a statement embodying thai 
belief cannot render its maker liablo in an aetion for 
deceit (e), however grossly iwgligent it may be, and how- 
ever mischievous in its results (/) . 

I have given reasons eUcwhcre (ff) for thinking thi- 
decision of the House of Lords an unfortunate one. If 
would be out of place to repeat those reasons hero. But 
it may be pointed out tliat the reversed opinion of tho 
Court' of Appeal is supported by u considerable pro- 
portion of American judicial opinion, though there arc 
also many decisions to the contrary. Some years after 
the decision of Derry v. Peek, the Supreme Court of the 
United States that "a person who mat'-s repre- 
sentations of material facts, assuming or intending to 
convey the impression that he has adequate knowledgc 
of the existence of such facts, when he is conscious th,at 
he has no such knowledge,' is ansvcrablo as if li- 
actually knew them to be false^which is admittcl 
everywhere-and then went on to say that a vendor 
or lessor may be held guUty of deceit by reason of 
material untrue representations "in respect of his owu 
business or property, the truth of which representations 
the vendor or lessor is bound ni.d must be presumed to 
know " (A) . This ktter step appears to be precisely that 

(i) Lord Uepsohell, 14 App. 
Ca. at p. 37S. 

(«) Aco. Glaiier v. RoUi (Vmi) 
42 Ch. Div. 436, SB L. i. Cli. 
820- Low V. Bouverie [1891] 3 
Ch.'sj, 80 L. J. Ch. 891, C. A. 

(/) X« Lievre v. Gould 
[1898] 1 Q. a. 491, 62 L. J. «. 
B. 858, C. A. (untrue certificate 

negligently given by a builder 
who owed no special duty to the 

(y) L. Q. R. V. 410; tor a 
different view »ec Sir William 
Anson, «6. vi. 72. 

(A) Lehiglt ^ino ««<' t"" '"' 

678. For other references •« 


Which in this country the Court n( X..r. i 

term or warranty in . l '« 1» an implied 

™«^.n. it czz:zCo::r^: s '^^ ^-'-^ 

te affirms; not nooossarilv «, ffi T ""^ '''■«' 

might then and twlT ' »'™"''' >"" «'■»'' <" 

orlar;:rr X -r;' rr '^ " '"- "' 
artificial than holding^aa the T ""' '^7 """" *""" 

»t an auction, advertised fn K„ ■!, ^ '"''''«'■ 

the auctioneer' «s Ttl^^^trt. ^""7^ '• ^"" ™^ 
without reserve n,- H, t , "" '"'° ^ ''^'Ij 

reservoir) """"""'-^ '^ «"" -'"»"t 


Slwt, Foundation, of I^„,| 

lu-bUity, i. 400, 407; Willi,to„ 
Lubility for Hone,t Misreprc- 

»1<«lion," Jl„v, La». K„,. 

"IV 415. p„,. Wi]li„„„ ,fc 
t- d.fflcnlt it i, ,„ ,,„„„„jj 
r "'» '" -o-'y V. /.„i „|„, 
;*= »W«i doctrine of e.toppal 
lUd warranty. 

(0 [1893J 1 Q. n. at p. 498 

per Lord Ealicr. ' 

(*) See judgments of Lindlev 

Clifford [1891 J 2 Cli. 449. 

(0 Wnrfou- V. 7/ormoa (I8S9) 
' P- i E. 309, 29 L. J u B 
". in R. H. 227. 


Such a development would hiivo l»on <iuiU> paraUol to 
other, which have taken place in the modern history of 
the law. No one now regard, an exprew warranty on a 
.alo othcrwi«! tlmn a. a matter of contract; yet until the 
latter port of the eighteenth o^ntury the common praetm, 
,a« to deckro on Mich warranties in tort(m). But it 
.eem. now too late, at all events in this country, to follow 
such a lino of speculation (n). 

It lui. been suggested that it would bo highly incon- 
venient to admit "inquiry into the reasonabkness ot .. 
belief ad.nitt..d to be honestly entertained 'Ho) ■ I O"""* 
»eo that the inquiry is more diHieult or inconvenient tbm 
that which eonstuntly takes plaeo in questions ot negli- 
gence, or that it is so difficult as thos.- which are newssar.v 
in eases of malicious pr»e:ution aiid abuse of privilege.1 
communications. Beside., wo do not admit bcheis to 
be honest Hrst and ask wh..ther they were reasonable 

If having houestlv made a representation, a man dis- 

-e_ icovcre that it is not true before the other party has uit,,! 

pV Lpon it, what is his position? It seems on princip • 

fc" ; that, us the offer of a contract is deemed to continue till 

Ircvocation or ae.eptance, here the representation must l.o 

1 taken to bo continuously made until it is acted upon, so 

that from the moment the party making it discovers that 

it is false and, having the means of communicating tl.o 

Law Itev. ii. 1, 53 (ropr. K«sas« 
in Anglo-Am. Legal Hi.topy,iii. 

(h) Mr. Street (Foundation* of 
Lognl Liability, i. 405) tliinli! it 
may bo possible to cstond the 
doctrine of implied warranty in 

America in the way »ugKCsteil. 
(nl Sir VV. An«on, L. (1. R- 

vi. 74. 




untrue. | 

(,„) |ri/ii>ui.oii V. .lUiton 
(1802) 2 EB»t 446, 451. Tboro 
is an oxan- a« late M 1841, 
Broun V. tagmntoii, 2 Man. fc 
II. 279, .58 B. B. 408. We need 
not remind the learned reader 
that the action of assumpsit itself 
was originally an action on the 
jaae fnr ileceit in breaking a 
promiie to the promisee's 
damage: J. B. Amea in Harvard 


truth to tho other party, omit< to do .o. ho i, ia p„i„t „f 
1««- making a fal™ «,pr«o„tatio„ knowledge of it, 

timt tho r' "'"" " "'" "' '^' ^''"■«' ''>• "- eircum^tano.. 
that he „nt.uc. r,.,aoaentation, or any of tho untrue n-pr,^ 
« ntafon., n.ay in tho lirst instano. have b«n tho r«ult 
f .nnocont error. If, „ft.. the error ha, beo„ ^iJ-Za 
.ho party ,W>„ ha, i„„o«,ntly n.a h, the incorrect rl^l 

-t on the beh„f that no ,ni„ak ■ haa heen maje; th", 

Ch t It' ;"' " '™."'""""' "■-"P'-'-n'ation even 

hough ,t «a, not «, originally" (p). W„ do not know 

"I any authority „gain,t thi, being the true doetrin; „f 

action for .loocit ,,, a, to the netting aside of a contract o 
-nveyanoc. Analogy .,.„, in its favour (r . Since the 
Judicature Acts, howevr, it is sufficient for Engl h 

u lo holds U the representation wu, true when first made 
h ceases to ho true by reason of some event within the 

now edge ot the party making it and not within the 
knowledge of the party to wliom it is made ^,) 


» Reyiirll v. Xpri,p (I8.J2) I 
U. -V. (). 660, per Lord Craii- 
WTth at pp. 708, 709: op, J™to1 
->r. B„ Bedrjravi- v. //„,,; (1881) 
2»<'h. Div. 12, 13, 51 L J Ch 

(?) The cttra-judicial remarks 
»t CqMou and James L. JJ. in 
■''*""'>*' V. Xewkold (J881) 17 
0>. Div. 301, 325, 329, aro how- 
•ver against tiis. 

(') Compare the dortrino of 
f'"""""' tilling in tre,pa=» rf. 
'«"" ".;«„,«„,, whioh is tarried 

out to grraver conjequcncM in the 
■•rirainal law. Je„ol ^ jj 
..»!.umed the common law rule to 
lie in some way narrower than 
Hiat of equity (20 Ch. Div. 13), 
l>iit tliij wai an Mtra-judicial 
dictum; and see per Bowen L. J., 
3i Ch. Div. at p. 594, deelininir' 
to neeept it. 

(•) Tmill V. Baring (1864) 4 
D. J. S, 318; the difflculty of 
making out how there was any 
repre.entation of fact in that case 
as distinguislied from a promise or 




Bnuh of 
dat:r to 
give cor- 
rect infor- 


On the other hand if a man itatc. aa fact what ho dot- 
not believe to bo fact, he apeaka at hi« peril; and this 
whether ho knowa tho contrary to be true or hu no 
knowledge of tho matter at all, for tho protonoc of having 
certain information which bo has not i» itaolf a dooeit. 
" He takea upon hims.lf to worrant his own belief of thr 
truth of that which ho ao aseort. " (J) . " I£ pcmona tok. 
upon themaolveB to make aaaortiona as to which they ar.^ 
ignorant whether thoy ar« true or untrue, they muat, iii 
a civil point of view, be held as roBponoiblo as if they ha<l 
aaaerted that which they knew to be untrue ■ («;. Thee.' 
dicta, one of an eminent common Uw judge, tho other nl 
an eminent chancellor, arc now both clamical; thoir dind 
application was to tho repudiation of contracU obtaminl 
by fraud or misroprcsuntation, but they state a principle 
which ia well underatodd to include liability in an acti.iii 
for dooeit (*). Tho ignorana^ rcfcrr«l to is conscious 
ignorance, the atato o£ mind o£ a man who aaserts his 
belief in a fact " when ho is conscious tliat he kno».; 
not whether it bo true or false, and when he lias then- 
foro no such belief " (i/) • 

With regard to transactions in whicli a more or hss 
stringent duty of giving full and correct informati.m 
(not merely of abstaining from falsehood or concealment 

13 {^^«c«.««4»^ 
11 ,<lX<>-CU. 

condition of a contract ia not ma- 
terial to tlie present purpose. 

(() Maule J., Evan) v. Ed- 
mondi (1853) 13 C. B. 777, 786, 
22 L. J. C. P. 211, 93 R. B. 
732, 730. 

(«) Lord CairnB, KeOL-Bii:" 
&ibia--Uiuai) Co. v.. Saili 
(1869) L. R. 4 H. L. 64, 79, 
3» L. J. Cli. 849. See per Sir 
J. Hannen in Peek v. Derri/, 37 
Ch. DiT. mt p. 581. Even I.ord 

Ilramwell allows Lord Cairii-'- 
dictum (14 App. Ca. at p. 351 1. 

(I) Tat/lor V. Aihton (1843) 11 
M. S; W. 401, 12 L. J. Ks. 363. 
63 K. R. 635; Etlijiiuitnu v. *';(-- 
„„„rwe (1886) 29 Ch. Di%. 459, 
479, 481, 65 L. J. Ch. 65:): cp. 
*•>».(* V. Vh«d«ick (l»»ll » 
App. Ca. at p. 190, por lA.r.1 

t^y) Lord Ilerscheil, Ifcny V 
fteh, 14 App. Ca. at p. 371. 


for ox«„p,, i, wuf.../o;::£,;',,7;;' n^;„ the general de^ription of decc t B It 7^" 

-t in equity) i, k„own to C t „ "l ''":'°^™' 
S.noe lie.,^ ,, P„t it ,o«.„s clear tl^Tt it oTm 
be^,ara,t.,.»ti.d,ofeo:;i\ ir 
but, U ., submitted, these only-the rieht „f T 
for .mMep^„.„tatio„ as a wrone^s not e„ . " " 

tho right of ^scission. In Z. o" "'"^'*''^'™ -'"' 

In tho alwencp of a positive ilniv ,„ ■ 
nmtion or full „nH V ^ ^'™ '""■'^■" '''!«- E-^'PI^l- 

nmtion oi Jull and correct answers to inquiry and ;„ th '""■"^■ 
absence of fraud, there i« still » |- •. . , ""' '■ ''*■''■■ 

«l„„i. ' * """tod c ass of cases in '""^ 

«hich a man may bo hold to „.„t i , • »iipp««»l 

ground of estoppel. Until miif , i » i • «iuity. 

.apposed to bo a distinct rule of !ltv t t ' " "" 
ha. misrepresentod. i„ . matte of' sin^:' LT" r'? 


'•^y for holding that thi, i, th. ^ct ioI"ZVf7: f"^'' 
"«l.; I c.„„„t „eopt thi, view Ch 86 "' ' " ^^ ''• 



rule of English courts. There is noLgencral ««• 
CftEfi^ BiJQh or Uttle, in making statewnta-af i«<>l. «» 
which other persons are likely to act (b). U there is m, 
oo8tract and no .tesaJ!k„ol«!SSJa« -duty, nothing short 
of fraud or estoppel will suffice. And we have to re- 
member that estoppel does not give a cause of action but 
only supplies a kind of artiHcial evidence (c). One of 
the cases hitherto relied on for the supposed rule (d) can 
be supported on the ground of estoppel, but on that ground 
only; a later and apparently not U«s considered and 
authoritative one(c) cannot be supported at all. 

In short the decision of the House of Lords in Deni/ 
V. Peek, as received and applied by the Court of Appool. 
is that ei/en the grossest carelessness in stating material 
facts is not equivalent to fraud, and cannot be made so 
by varying the name of the cause of action; and the 
substance of the decision is not altered by the results 
turning out to be of wider scope, and to have more effect 
on other doctrines supposed to be settled, than at the 
time was apprehended by a tribunal of whose acting 
members not one had any working aoqiuaintanoe with 
courts of equity. 

The effects of Derrn v. Peek, as regards the particular 
class of company cases to which the decision immediately 

(6) .ijma.ju.Mm'"'' n*">ii 

a Ch. 449, 60 L. J. Ch. 443, 
C. A., i« Lievre v. Gould [ISSS'i 
1 Q. B. 491, 62 L. .1. Q. B. 353, 
C. A. Prof. Jeromiali Smitli, of 
Harvard University, Ujinlis the 
Court of Appeal might have dis- 
tinguisliel thii ciaM of cases from 
Dtrry v. <"'»(•* (Harv. Law Hov. 
xiv. 184). His remarlts deserve 
careful attention in tliosc juris- 
dictions where the question is not 

(a) Xoip v. Bouverie [1891 J 3 
Ch. 82, 60 L. J. Ch. 594, C. A., 
see per Bowen L. J. [1891J 3 Ch. 
at p. 105. 

(rf) Bitrrowei v. Lack (180.1) 
10 Vos. 470, 8 R. B. 33, 836, k>- 
per Lindlcy L. J. [1891] 3 fh. 
at p. 101. 

(«) Slim V. Croucher (1S60) 1 
D. F. J. 518; Low v. Bouccrif, 
above, per Lindley L. J. [1891] 
3 Ch. at p. 102. 


tttia -^^^ """ "^"^ "» ^""»«i "> "^t " par- 

ticular grievance, and do« not «,place an unsound 

doctnno wlucU leada to unfortunate results by a sounder 

przncple which wou'd avoid then. "(3), wo hZZ 

occasion to do more than mention its e^Lnl 

(c) It is npi a necessary condition of liability that the i,. .■ 
.misrepresentation complained of should have Wn mal I*' 

irectly to the plaintiff, „, that the defendant shTuS "•""™*- 
-have intended or desired any harm to eome to him It 
us euBugh that the representation was intended forhim 
to as^ upon, and that ho has acted in the manner eontem- 

that It s the wo,' of a well-known maker and safe to 

and he buj^er has a complete remedy in contract if the 
as-rtion is found untrue; and this will generallv be his 
bettor remedy as he need not then allege or prove anv- 
hng about he defendant's knowledge; but ho mav none 
he less treat the warranty, if it be fraudulent as a 
ubstantive ground of action in tort. If tho buvcr wants 
the gun not for his own use, but for the us= of a son ,. 
whom he moans to give it, and the seller knows this, tho 
eller s assertion is a representation on which ho intends or 

».Uull3 0, recklessly asserted that which is false, and the 
gun being „, fact of inferior and unsafe manufaetur., 

!i' 8 son ttnil wounds 

hiui, the seller is liable to that =„ 
(for there is no contract between the 

(/) 5S t 54 Vict. [.. 6< 

son, not on his warranty 
■m, and no consideratiDin 

«-en.oled i„ ,hc CompaniM ed 
(tonsoLdation) Act, 1908, a. 84) 

(now (y) Lindloy on Companies, cth 

. 110 


tationa to 
MUll 1. 

DmtoH V. 
e. X. S. 



tor any), but for «. deceit (fc). Ho meant no other wrong 
than obtaining a better price than the gun was worth; 
probably ho hoped it would be good enough not to burst, 
though not so good as he said it was; but he has put 
another in danger of life and limb by his faUehood, and he 
must abide the risk. 

Further, a statement circulated or published in order to 
L acted on by u certain class of persons, or at the pleasure 
of any one to whose hands it may come, is deemed to be 
made to that person who acts upon it, though he may be 
wholly unknown to the issuer of the statement. A bill 
is presented for acceptance at a merchant's office. He 
is not there, but a friend, not his partner or agent, who 
does his own business at the same plaoe, is on the spot, 
and, assuming without inquiry that the bill is draw.i 
and presented in the reguUr course of business, takos 
upon himself to accept the bill as agont for the drawee. 
Thereby he represents to every one who may bccume a 
holder of the bill in due course that he has authority to 
accept; and if he has in fact no authority, and his accept- 
ance is not ratified by the nominal principal, he is liable to 
an action for deceit, though he may have thought his 
conduct was for the benefit of all parties, and expoclal 
that the acceptance would be ratified (i). 

Again, the current time-table of a railway company is 
a representation to persons moaning to travel by the com- 

(h) LangiiH^e v. Levy (1837) 
2 M. Si W. 519: affirmed (very 
brieJy) in Bi. Ch. 4 M. & W. 
338; 46 R. B. 089. 695. The 
jury mmt be taken, it would ap- 
pear, to have found that the 
defendant intended hi« reprewn- 
tatiou to be communicated in 
substance to the plaintiff, and 

there seemu to have been ovidomo 
from wliioh tliey might infer such 
communication with the defpn- 
dant'd authority. 

(^i) PolMl V. Walter (1832) 3 
B.k Ad. 114,37 K. K.3H. The 
more recent doctrine of iiuplii'd 
warranty was then unknown. 


LZ''/™,'"" "'"' ""■ "°"'P''"y ^"" "«> "-"■'"''le dili- 
gence to despatch trains at or about the stated ti J or 
the stated places. If „ ,„;„ ,,hi,, ^, « *» 

„7Sr- "'" "'"t^- ""' '^ ^ '^^ "p.e«„tatf„ 
and (behef ,n .t. truth on the part of the company's 
servants be,ng out of the question) a porscn who byZly. 

ng on Uhas n..s,ed an appoinfnent and incurred lis" ay 
have an act.on for de.eit against the company (k) hZ 
there .s no fraudufcnt intention. The diuU is euUv" 
«eghge„t on„,sion; a page of the tables should ha.l: 

Id hardly 1^ eallod gross, but for the manifest Lpor^ 
ance to the pubho of accuracy in these announcements 

Again, the prospectus of a new company, so fxr forth «.*,. 
- .t alleges matters of fact eoncerning'the position and ^^'• 
prospec^sof the undertaking, isarepresentatiL add std 

, but it ^ 17 'r r'' '" ^""^^^ - "'" --p-v; 

' the IVm^ "'' '° **' "'^'^'^^ "> p«'«o°« ^vho aft;; 

j t^ estabUshment of the company become purchasers 
.haresatoneor more removes from the original holders (/) 

(*> So held unsnimomly in 
^««<.» ». ri. S. s, Co. (1856) 5 
E- i B. 800, 25 I,, j. q, b. 129 
108 R.B. 385. Urd Campbell 
C. J., .nd Wightman J., held 
(.dubu. Cromplon J.) that there 
wa> alio a cauM of action in con- 
»>«t. The difflonlty often felt 
•bout maintaining an action for 
<'e»eit against a corporation doei 
°°' "^ ^ iMve oec»rrod to any 
"ember of the Court. It i, of 
mme open to argument that a, 
» the cauM of action in tort thi. 
"«• « overruled bjr /)„,„ , 

™*' " APP- Ca. 337, 58 L. J. 
C'- 86.; and Zou, v. i,„„„„i, 

r.— I. 

[1891] 3 Ch. 82, 60 L. J. ch 
594, teemj to point in fie aame 
direction. A man who put, forth 
hy inadvertence a «tatement ton- 
Irary to facH which ho know, i, 
hardly fraudulent in the «cn.c of 
those decision.. It woidd be 
fraud if he persisted in the state- 
ment after having hi, attention 
called to it. 

(0 fe ci V , f?lir ii .» (1873) L. 
B. 611. L. 377, 400, 411, 43 L.J 
Ch. 19. But thi,doe,noto.vempt 
promoter., or director, from 
liability if they make active use 
of a fraudulent prospectus, at all 
events coupled with new false and 

i 'iP 


on the 



for the office of the prospectus is exhausted when onco 
the shares are allotted. As regards those to whom it is 
addressed, it matters not whether the promoters wiUuUv 
use misleading language or not, or do or do not expect 
that the undertaking will ultimately be successful. The 
material question is. "Was there or was there not 
misrepresentation in point of £ax;t ?" («i). Innocent or 
benevolent motives do not justify an unlawful mtention in 
law, though they are too often allowed to do so in popular 

(d) As to the plaintifi's action on the faith of the 
defendant's representation. 

\ by words or acts represents to B. that a certain state' 
of things exists, in order to induce B. to act in a certain 
way. The simplest ease is where B.. relying wholly on 
A 's statement, and having no other source of information, 
acts in the manner contemplated. This needs no further 
comment. The case of B . disbelieving and rejecting A s 
assertion is equally simple. 

Another case is that A.'s representation is never com- 
municated to B. Here, though A. may have intended t.. 
deceive B., it is pkin that he has not deceived him; and 
an unsuccessful attempt to deceive, however unrighteous 
it may be, does not cause damage, and is not an aitioniibl" 
wrong A fraudulent seller of detective goods who patch.* 
lup a (law for the purpostt of deceiving an inspection 
icannot be said to have thereby deceived a buyer ivho 
'omits to any inspection at all. We should sav th.s 

fraudulnnt slatemcnto, to induci' 
peraons to buy shares: Andrew, 
T. Morktord [1896] 1 Q. B. 372, 
66 L. J. Q. B. 302, C. A. 
(m) Lord Cairm, L. R. 6 11. L. 

at p. 409. Cp. per Lord lilafk- 
burn, Smith v. Chiilv>:dc. 9 App. 
Ca. at p. '.01; Lord Horschcll, 
Berry v. Pw*, 14 App. Ca. at 
pp. 365, 371. 

deceit: knowledge or inquibt. 
was an obvious proposition if tt h.A ^ ,. i. ... 
doubted („). Tile buvrl \^ '^" '"^'"^^ 

obvious means of verifying th„ '^ 

utory neghgeneo doo» not mean that tho plaintiil i, to 
"e punished for hiR ivmt „e ^- , i"^"'i'n is to 
default of hi. T '^""""' *"" "'»' "^ "^t or 

1 t w° / '""'• ""'' ""' "'^ ""^"Senoe of the defen- 
dant, was the approximate eause of his damage. If I 

' «■ t C. 90, 31 L. J. E,. 322 

a <•.» of contract, m H,., „ ^J, 

« 1«: diaented f™ bj- O^-t. 


led^ im. 
sotDal in. 

I""« C. J., L. B. 6 Q. B at 
P- 605. The ca«, wm . poc„u„ 
one, but oonld not l,»vc been 
otherwise decided. 




not do. 


«Uer of a business fraudulently overstate, the amount of 
The business and returns, and thereby obtains an exee« 
priee he is liable to an aoUon for deee.t at the suit of the 
buy«. although the books were accessible to the buyer 
before the sale was concluded (o). 
P.*u.c. And the same principk applies as long as the party 
^X"^ substantially puts his trust in the -P— 'f^" "l^^ 
^ to him, even if he docs use some observat.on of his o*n. 
K cursory view of a house asserted by the vendor to 
be'in good repair doc^not preclude the purchaser rom 
eompuling of substantial defects "' . -P«- j";'^;^. 
afterwards discovers. • The purchaser is induced to n..k 
i a less accurate examination by the representation whul, 
1 1 had a right to believe" (p). The ""ycr of a bus.». 
is not deprived of redress for m.srepresentet on o tl, 
amount of profits, because he has seen or held m his h.n.l 
a bundle of papers alleged to contain the entries show.n, 
hose profits',). An original shareholder in a company 
who was induced to apply for his shares by exagge a od 
and untrue statements in the prospectus is not less eutitl, ,1 
Trelief because facts negativing those statemenU arc 
disclosed by documents referred to in the prospectus, 
which he might have seen by applying at the compain , 
office (r). ^ an express by a eontracln,, 
Cty to veiify aU ..presentations for himself is eons.iuod. 

(o) Dobell V. Sttvcm (l»'i6) 
3 B. & C. 6J3, 27 R. B. 411. 

10 Vm. »t P- SIO. 8 n. B. 3» 
(croM rrait. for speciflo pcrfopm- 
iince and compensation). 

20 Oh. Div. 1, SI L. J. Ch. lis 
(Mtion for spocifc performance, 

connlerelaim fop reici»ion and 


(r) Central B. Co. of I e«r-.,,dn 

V. Kuch (1867) L. B. 2 H. 1. 

99, 120, 36 L. J. Ch. 849, pet 

Lord Chelmsford. A ca«e of till. 
kind alone would not prove tht 
rule a> a general one, promolcre 
of a company being under a 
■pecial duty of full diKlosa™. 

deceit: C0X8TBUCTI0N. 3 

/it*BMible as intended onl.v to cover l.onost mistakes- and 
l^t went farther it wouW ptaboU,-^ ko binS«' 

In short, nothing will ceuso a culpable misrepro^n- 
t^.on short of proof that it ,v„s not relied on^eThcr 

S.ed f^l^.T *"" °"" ••--«*^'-". or because the 
alleged fact d.d not influence his action at all. And 

pro>ed guilty of material misrepresentation (t). He mar 
prove an, of th^ things if he can. It is not in aboTuto 
proposition of the law that one who, having a c rlt 
alegation Wore him, acts as belief in that'a.legattn 

Tl Tf"" '"^""' " ""'"• '" "»'• •' ^'•-'--^ to have 
a^ed on the faith of that allegation. It is „n infei.„J 
fa t, and may be exclud«l by contrarv proof. But th 
inference is often irresistible («). 

Difficulties may arise on the construction of the state- A»bi 
■n-t alleged to be de«itful. Of course a matt --H". 

but , here the meaning i,, obscure it is for the party 
complaining to show that he relied upon the words ^I 
sense in which they were false and misl«.ding, and of 
V .oh they were fairly capable (.). As most peLns take 
to first eonstruetion of obseui. words which happens t,. 
strike them for the obviously right and only reLonab o 
cons ruction there must always be room for perple.i" i' 
ues ions of this kind. Even Judicial minds will mZ 
widely upon such point*, after full discussion and eon- 
"doration of the various constructions proposal (yS 

351. 365, 77 L. J. PC 1 A i ' 

Cy; In the CUSP luat citrd 





Lort T». (e) It has already been observed in general that a faW 
*^'' rmreaenUtion may at the same time bo a promiso or term 
of a contract. In particular it may be such aa to amount 
to, or to be in the nature o£, a guaranty. Now by the 
Statute of Frauds a guaranty cannot be aued on aa a 
promise unless it is in writing and signed by the party to 
be charged or his agent. If an oral guaranty could b,, 
sued on in tort by treating it as a fraudulent affirmation 
instead of a promise, the statute might bo largely evadinl. 
Such actions, in fact, were a novelty a oantury and ,l 
quarter after the statute had been passed (j), much es, 
were they form^n at the time. It was pointed out, aftoi- 
the modem action for dc^it was established, that th. 
jurisdiction thus created was of dangerous latitude ^«,; 
and, at the time when the parties could not bo witnesses ni 
a court ot common law, the objecti n had much for<^. By 
Lord Tcnterdcn's Act, as it is commonly ealUd(6), the 
following provision was made: — 

" No action shall be brought whereby to oharga any 

jorson upon or by reason of any representation or assur- 

.) /^ tnco made or given concerning or relating to the character, 

^i^^./<;js4„duet, credit, ability, trade, or dealings of any othvr 

•.,j»J:i^J>erson. to the intent or purpos. that such other pers.u 

r '^^ ,„ay obtain credit, money, or goods upon (c), unless 

(1881-2) (Fry J., ""* t". .\. 2(1 
Ch. Div. 27), Fry J. and Lord 
Hnunwell decidedly adopted one 
eoMtruetion of a particular nUte- 
ment; Lindley L. J- the same, 
tliough leu decidedly, and Cotton 
L. J. anotl', while Jeaeel il. R., 
Lord Solborne, Lord Blackburn, 
and Lord Watson thought it om- 

(«) See the di«senting jodgraent 
of Qrojo J. in i*(i»'«y "■ i'""'""' 
CnaS) 8 T. ». 61, 1 B. B. 634, 

MC. and 2 Sm. L. C. 

jf By Lonl Bldon in Et-ait^ v. 
OMucIl C1801) 6 Vej. 174. H2, 
Ha, r, B. B. 245, 251, 253. 

(/,) 9 Geo. IV. c. 14, 8. 6. 

(0) Sic. It is believed that the 
word " credit " waa aciidc-ntally 
transposed, lo that the true mul- 
ing would be " obtain money or 
goods upon credit: " sec Ljidr v. 
Ihrmird (1886) 1 M. H W- H". 
16 K. B. 209, 282, per Parlcc B. 
Other conjectural emcndulioM 


"otdo (d) Some do ,t t f " " ""^ "" "»""' ^'" 
Joes o L I ttrH^'''" ''""''"' •'''''''''>■■■ 

- «". but an aHi. jr;:i :ri;„e^""™'"->' 

»t«nco i„ a person's affai,-s. The tt JTn """"'" 

'0 b,, that o„I, .taton,™t, ..aUrgo^rtoT:"" '""" 
of P-'-al c^Kiit a. within tho'ZJ; " l^P 
»tat*ment is not the le.« within ,> 1. ^ '\ ''""'' « 
includes the allr«ationnf « "• /'""over, because it 

a» a reason (/) " ''*"''" """'"«™1 eircu»sta„«, 


The word "action " of eourim .li,) „„. ■ i j 
.."H, at the date of the T Tu t C„::': ol^^^^^ ■■" ^w 

luruaietion. act on the nlaintilf» „oH. tureAotfc 

fondant's, without the eor^oZ -on of d '^'"" "" '" 
material facts. Cases of th^ll 7 doeuments or other 

"°, '"»lf<»'«l in hi. judgment 
Md that of Lord Aliingcr 

Et. Ph. L. B. 9 Q. B. 301, 43 
t.. J. y. B. 58. Thi, extend. l„ 
the CMC of a corporation: //„■,( 
»■ »>.( *«,„y r„„„ a„„i,„, 
C»- [1901] 2 K. 1). 560, 70 I. ., 
ll- U. 82a, c. A. 

ff) *"«*« and Alderson BB. in 
'-yrfo V. i»„™rrf (1836) note („) 
l«l page: »„,„ i,„^ ^^^^^ 

„. f • ■"'' •■"'■"■'y B. And >ee 

»■ (1890) 25 Q. B. Div. 512, 
"» L. J. Q. B. 565. 

/■>/■""'•' V. «,•«,■;,. (J8JJJ 
» A- S B. M7, 47 B. b. 626. 



brouBht mcrelv for damage, at comiiion law. Tho muv 
rule hns been introduced by .tatuto in Scotland (3). 

made by 

Then- 6tUl remain th<< quMtiona which atiM in the ca». 
of a false reprcwntation made by an agent on account of 
his piincipal. Bearing in mind that tockl<« ignoranc 
i» cHuivalent to guilty knowledge, we may «tate th- 
altornativoa to bo considered as follows:— 

The principal knows the reproscntation to lie false ami 
authorities the making of it. Here tho principal is clearh 
liable; the agent is or is not liable according as he does 
not or does himself believe the representation to bo true. 
The principal knows the contrary of the represjntatioi, 
to be true, and it is made by the agent in the general 
course of his employment but without speoiflc authority. 

Here, if the agent does not believe his repre»entotioi. to 
be true, he commits a fraud in the cau.e of his cniplo.v 
'ment ..nd for tho principal's purposes, and, oceordinp to 
the general rule of liability for the acts and defaultc of 
an agent, tho principal is liable (fc) . 

If the agent does believe the representation to be true-. 
them is a difficulty; for the agent has not done any wrong 
•and the principal has not authoriod any. Yet tho other 
party's damage is the same. That he may rescind the 
contract, if he has been misled into a contract, may no« 
be taken as settled law {t;. But what it there was not 
\any contract, or rescission has boeomo impossible? Has 

(y) Mercantile Law (Scotland) 
Amendment Act, 1850, b. 6. 
Fraud will not take a case oot of 
the statute. Clijdrldale Batik v. 
Po«.»[1896] A. C. 381,68L.J. 

P. C. 78. 

(*) Parke B., 6 M. 4: \V. 373, 
S3 R. R. Ml. 

(*) 800 PrincipleJ of Contract. 

8th od. 009. In Con,/uot v. 
fau-lct (1840) 6 M. i W. 3.M, 
55 H. R. 655, it is difflcull lo 
suppose that as a matter of fort 
the agent's assertion can liuvo 
been otherwise than rcckica: 
what was actually decided wa. 
that it was misdirection to tell 
the jury without qualiiicntioii 


ho « di.tinct groun.1 of action, and if ,„ ho« » ^l ii 

. I'lirc IS no (K'™<iion co considoi- (?i. 

"tli.t the roprocntalii.n nin,l|. I,,- 

™ •»'"' "■"«' ''«vo ,i,p ,„„,;, 

kw-elf: ■■ the dofendant'H ,,|,,, 
••emng fraud with™, q,„|i. 

<*) Admitted bj- .11 ,|,p ij„„„, 
'' Cornfoct V. f„„*, l.„,|„.. „ 
»■''». .1 pp. 382 3-^ 

»■ R- 6««}, Aldemon at p 37, 
i« B. K. 660). Th. broader' 

>"•»• of Lord Abingcr'H di,.,„t. 
||.(r JudKmc,,. of o„u„c inHudc. 

W The derision of thfTro„,o of 
I-ord. m flfrr.,, v. /•<.,.* (,,89) ,^ 

App. Ca. 337, 5), L. J. «,. 864, 
may be tho„Kl„ (0 „,^, ,j,; 
opinion Io«i probable: bnt .ee per 
l->rd H.l.b„ry in .?. f,„,.„„ 

f*.°" •••-•""'"'■" «V^m„„„ 
jiM,] A. C. 351. 3S7, 77 L. J 

of oorpo- 


On till' ullior hand an honist and pruJont u)^nt may 
i»y, " To thi) U-«t ol my own beliot luoh anil such is thi^ 
C880," adding in oxprm terms or by other clear indication 
— " but 1 littvo no information from my principal." Her., 
therc! is no Kvound for complaint, tho other party being 
fairly put on inquiry. 

If tho principal does not expressly authoriio tho repre- 
sentation, and docs not know tho contrary to ba true, 
but the agent dors, tho representation being in a matter 
within the general scope of his authority, tho principal 
is liablo as ho would be for any other wrongful act of an 
BgenI about his business. .\nd as this liability Is not 

founded on any personal default in the principal, .t 
qually holds when the principal is a eorporaUon (w ■ 
It has been suggested, but never dreided, that it is 
limited to the amount by which the principal has proHt.d 
through the agents fraud. The Judicial Committee li:»,. 
held a principal liable who got no proHt at all (»). 

But it seems to be stiU arguable that tho propiwd 
limitation holds in the case of the defendant being a ,„r- 
poration (»), though it has been disregarded in at l.^ast 
one comparatively early decision of an English supenc.r 
court, the boiring of which on this point has appareiitlv 
been overlooked (p). Ulpiun, on the other hand, nm.v l«- 

(m) Baruiclc v. JiiiglM Joint 
Steele eant (1887) Ex. Ch. L. 
R. i Ex. 259, 38 I.. J. Ex. 147; 
Mackajf V. Commeirial Banii of 
Sew Brumwick (,1874) L. K. * 
V. C. 394, 43 L. .T. 1'. f. 31; 
Sicire V. Fnmcit (1877) 3 App. 
C. 106, 47 L. J. P. C. 18 (J. 
C); Ilouldtworth v. Cits of 
(llaigau, Bank (ISSO) !> .\pp.-Ca. 
317. Sou pp. 07, 98, above. 

(It) Swire V. t'raHcie, last n.t(''. 

(o) Lord Cranwopth in Wvi^tftii 
Bank of Scotland v. Jtl'lir 1867) 
L. U. 1 Sr. Ji D. at pp. 1«6. I6i- 
Lord Chelnnford'i language i« 
much more f^^^rded. 

{p) Denton v. (t . -V. //■ ('"■ 
(1856) p. 30S, above. N" r«* 
oould bo itronger, tor il) Ik" 
defendant wa» a corpuriitiuu; 
(2) tliore was no active or intcn- 

I liard^nr. 



Sil"„ "" """"y- '■"' ""' "•"•''■■" '"•" "■■•«' eor- 

pon,fon» wcro nnknown to fh. R„,„„„ !,,„.,,„ 

Tho horde, ea... that can be pu. f,. th. pri„.,-,,al. an,l B«,a o, 

author..., . ,,,,,i,i, „,„.,„„„, ,^,^.,,^ ,^^ I ^. . 'P»J f-tft 

true, and which «t tho tim,. „f ^m,,-,,,, ,| , ,„ 

true; before the a^ent ha, ox.ruted l„ 

fact, are iiiatori.ll.v ,ha„^.d ,„ the kno,, .,.„ 

but unknown to tho principal; the » , „■ , 

from the principal, and make., the»|.,l , 

nuthomed. n„t the ea*. is „„ ,„„,,,,., ,, ;, ,^, , 
m»n«f«oturerorearrier ,vho lin.ln hi„,„.lf „,,,„,„,, „ ' ' 

"Ujage, at the suit of „n utter «,ran,er bv „. ,;';;; 

-gUgonce of a servant, although he Inn u»;.d all diligent 
m choo.,n« h„ servant., and providing for the r "u" 
d.rocfon of their work. The ne<..«»arv and ,u ic en 

fault of the «.rvant or agent b..long.d ,o the elas., of a.ts 
" "^ «»>■ other wrong.- The authority of Bancirk v. 


<»n«l Wwhood, bat the nu-rc 
neKliKwit continuanio of an 
•nnouncoment no longer iruo; 
H) tho corporation lii-tiicl no 
proSt. The point, honoicr, «a» 
not diacuMcd, 

(») "■ *■ ». de dolo malo, 15 
S 1. Std ID in municipal de dolo 
Irtar actio, dnWtatur. Et pub. 
« mo quidom dolo non pono 
««n, quid enim municip^, dolo 
'"'"' l»"nntP Sod .i quid ad 

ooH pononit o, dolo oorom qa| 
ro. oonim adn.ini.trant, pnlo 
dandun,. Tho Ho„,a„ l.wy,„ 
adhered more cloKly to y,, 
nriginal conception of moral 
fraud a, the ground of action 
than our courta have dono. Tho 
«<■'<» rf« dolo wa, /„„„„, and 
wa. never an alternative remedy, 
hut lay only .hen there wto no 
other ,,i de hi, reb„. „lia actio 
non orit), I). /I. ,, 1 

I I 



EnglM Joint Stock Bank (r) is believed, noUithstandinsr 
the doubts still sometimes expressed, to be conclusive. 

11— Slander of Title; Unfair Competition. 
SUndT of The wrong caUed Slander of Title is in truth a special 
'"^- variety of deceit, which differs from tho ordinary typo ii. 

that third persons, not tho plaintiff himself, arc induce,! 
by the d fondants faUchood to act in a manner causmir 
damage to the plaintiff. Notwithstanding the current 
' name, an action for this cause is not like an action for 
ordinarv defamation; it is "an action on tho ease for 
special "damage sustained by reason of tho speaking or 
pubUoation of the slander of the plaintiffs title" (r. 
Also tho wrong is a "malicious" one in tho only proper 
sense of the word, that is, absence o£ good faith is aji 
essential condition of liability (/); or bad faith as well as 
special damage is of the gist of the action. Tho special 
damage required to support thi : Vind of action is actual 
damage, not necessarily damage j-ioved with certainty in 
every particular. Such damage as is the natural conse- 
quence of tho false statement may be special onougli 
though the connexion may not be specificaUy proved (i(). 

This kind of action is not fre>iuout. Formerly it 

Murks iVct, 1883, ». 32, wliidi 
gives a statutory oauso of action; 
Skim-er i Co. v. Slien' f ('«• 
[1893] 1 Ch. 413, 62 L. .1. Cli. 
196, C. A. Malice cannot be i.i 
forted from more nii^akc: Patrr 
V. Halur (1847) 3 C. li. 831, 1« 
L. J. C. P. 124, 71 It. U. 503. 

(,i)J»«(c.'i#cv.i-™M 118921 2 
Q. B. 524, 61 L. J. «. "• 535. 
C. A. 

of the 

(r) L. R. 2 Bs. 259, 265. 

(«) Tindsl C. J., Malachii v. 
Boptr (1886) 3 Bing. N. C. 371, 
43 R. R. 691; Bigelow L. C. 42, 

(<) JtalietJ V. Brothel liooil 
(1881) 19 Ch. Div. 386, 51 L. J. 
Ch. 233, confirming previous 
•uthorities. As to the particular 
subject-matter in that case, «;'o 
the Patents, Designs, and Trade 


appears to have been applied in the King's Courts (x) 
oidy to statements in disparagement of the plaintiB's 
title to real property. It is now understood th*t the 
same reason applies to the proteetion of title to chattels 
.and of e«lu8ive interests analogous to property, though 
not property in the strict sense, like patent rights and 
copyright. But an assertion of title made by way of 
/self-defence or warning in any of these matt'crs is not 
/actionabk, though the claim bo mistaJcen, if it is made 
.n good faith (,j) . In America the Uw has been ej^tcnded 
to the protection of inchoate interests under an agree- 
ment. If A. has agreed to sell certain chattels to B 
and C. by sending to A. a fake telegram in the name of 
B., or by other wilfully false representation, induces 4 
to believe that B. does not want the goods, and to sell to 
o. mstead, B. has an action against C. for the resultinsr 
loss to him, and it is held to make no difference that tho 
original agreement was not enforceable for want of satisfy- 
ing the Statute of Frauds (i). 

A disparaging statement concerning a man's title to 
use an invention, design, or trade name, or his conduct 
m the matter of a contract, may amount to a libel or 
.lander on him in the way of his business: in other words 


{*) ProcceJiufp, in tlio nature 
of iluder of title were known to 
local courts in the Middle Agoa: 
in 1320 a tenan; of the Bishop of 
By at Liltloport wm «ncd 
"quia defamavit bladum domini 
per quod alii emptores roliquc- 
niut emere de hlndo domini ad 
'l«mpnnm domini: " The Court 
"•ron. Sold. Soc. 1891, p. 130; 
there Is another case at p. 136. 

W Wren v. jyei/d (1869) L. 
"• * Q. B, 730, 38 L. J. Q. B. 
32>; UalK) V. Btolherhood, 

note {!) (patent: in Wmt 
V. Weild tho action is said to bo 
of a new kind, but sustainable 
with proof of malice); UleKard 
V. Yomi, (1870) L. U. .5 C P 
122, 39 L. J. c. P. 85 (title to 
goods); Itick, V. BrmH, a880) 
15 l-n. D. 22, 49 L. J. Ch. 812 
(copyright in design), sec 19 
Ch. D. 391. 

(i) S,nion V. Prttit (1829) 2 
Wend. 383; IHce v. J/„„,v, 
(1876) 66 N. Y. 82. 

I I 









tho special wrong of slander of title may bo included in 
defamation, hut it is evidently better for the plaintiff tr, 
rely on the general law of defamation if ho can, as thus 
he escapes the trouhlesomo burden of proving bnrt 
faith (a^ Again, an action in the nature of slander cf 
title lic3 for damage caused by wilfully false statements 
tending to damage the pUintifts business, such as tbnl 
he has ceased to carry it on; and it is immaterial whether 
the statements are or are not injurious to th. plaintiff s 
personal character (ft) . In short, " that an action will l.o 
for written or oral falsehoods, not actionable per sc nor 
even defamatory, where they are maliciously publish,.!. 
where thev are calculated in tho ordinary cours<- of 
things to produce, and where they do produce, actual 
damage, is established law-'C')- But the statemt.ts 
must be both fake and malicious. Mere disparagenunt 
of a rival traders s,'Oods, without theso elements, wiU not 
amount to a cans.- of action (d), and mere pufling of 
one's own goods as superior to a rivals, without sp^'Chc 
false statements, appears not to be actionable m any 

ca8c(c). .. . , 1 • 

It has been held in Massachusetts that if A. has exclustv,. 
privileges under a contract with B.. and X. by puqiosoh 
misleading statements or signs induces the publi.- t" 
bcliev.. that X. has the same rights, and thereby d.viat 
custom from A., X. is liable to an action at the suit 
of ^ {/) In that ease the defendants, who worn roacli 

(a} Hce Tlwrleil'' l'«'l'' ''"«' 
Co. V. J/«.»"»» (1879) U Ch. 
Div. 763; Jli'l" v. Br«.^l^■', note 
(y) laat piifro. 

(6) Xiitr il/t V. Jlium [1692] 
2 Q. B. Sil, 61 I- J. O. B. 535, 
C. A. 

(0 nU. C1M2J 2 Q. B. at 

p. 827, prr Cur. 

(rf) niiile V. Mellin 1 189^1 

A. C. 154, 64 L. J. Ch. 308. 
(c) lliibbuck i K«u' >■ 

[1899] 1 <). B. 86. 68 L. J. «■ 

B. 34, C. A. 

(/) ■V»r''i '■ ..Sil'"'!" '"" 

owne„, .«rf eho „„„„ „t „ hotel „„ t,,,;, ,^,,„, 
and the dr.verH' caps, so a, to suggc^ th.t thev wo™ 
»u honzod and cmpWod ,,v the h„t.I-t^,„. to ^y 
between tl,o hotel „nd tl... railway station; and tWe Z 
«ome evdence of e.p„.,,,nent« In- the .iof^dant,' 
servant, that their coaeh ,va« "the regular eo-ch.' TI,e 
ph.nt,ff. wore the eoaeh owner, in fact authorised and 
employed bv the hotel. The Court said that th.- defe^ 
dants were free to con,pet.. with the plaintiffs For the 

"Y'T u P"'^'^''' -"' ^'««i' to tlmt ho,el, and to 
"dver ,se then- .ntention „f s„ J„i„„ ,„ „„, ,„„^,^ ^^,^,.. 

."t they must not fdsel,- hold themselves out as havin.^ 
.1.0 patrona^ of the hotel, and th-ro wa. e,i.ler.«, on 
« .oh a ,ur,- „,i^ht well Knd suoh holding out as a faet. 

uncus hnk ftwe.. the gener.l law of fals<. rop..sonta. 

tTa tr"ad T' "'r "-^ '" ^'"' '"'""^-""-'^ of rights 
to a ado mark or trade name. No English ca«. much 
c . has been met with: its p,«uli„ity is that no 
title to any property or to a defined legal right was 
.n 4ue.t.o„. The hotel-teeper eonld not gi™ a mfnop "■ 
but only „ «,rt „f preferential comity. But this is 
pramcally a valuable privilege n, the nature of goodwill 
and equally ,.,„hle of bemg legallv reeognLd ad 
mt^ted aga„.st fn.udulont mfringen.nt. Goodwill in 
tho accustomed se,u. d«,s «t n.«i .he same kind „f 
pro eetmn s.nee it exists l-y virtue „f s„,„e e.xpr,>„ 
-tract wlueh affords a n.ore convenient ren.edv. .Son.e 
.".0 ago ,„ attempt was n.ade, by way of analog,- ,„ 
'lander of t.tle, to set up an exclusive right to the name „f 


' l-'"sh. 322, an,l Ili^oluw L. f 

»»■ F.,r modi-rn AniPri™i, lo,- 

-!"■ ""■ '•«•■' Oiimcs imdcr ih.. 
»«l of „„f,i, ,..,„,prti,i„„ ,,„,, 

i<K' licit apprar rrmprknhli- \ 
■""dcrn Kn^li.l, Cmrt minl.t 
bnn^ it „„d,.r " p„„i,„ „ff - 


» house on behalf of the owner as against, an adjacent 
owner. Such a right is not known to the law (g). 

T«d. The protection of trade marks and trade names was 

^"^ origimiUy underUken by the courts on the ground oi 
■""■»"• preventing fraud (ft). The right to a trade mark after 
being more and more assimilated to proprietary rights t). 
has become a statutory franchise analogous to patent 
rights and copyright (fc), and the wrong to be redressed 
is now, in cases within the statute, conceived no lon^ r 
as a species o£ fraud, but as boing to an incorporeal 
franchise what trespass is to the possession, or right to 
possession, of the corporeal subjects of property. But 
where' a registered trade mark is infringed by a pers.,, 
who did not know of its e>tistonC3, he is not liable to 
pay damages or account for proHts in respect of any- 
thing done before ho had notice (/). 

In cases of trade name, and the like, outside the law at 
Itrade marks proper, there has been a kind of oscillation 
Ibetween the notions of quasi-proprietary right and ot the 
(personal right not to be injured by fraudulent c.u- 

an action on the case for deceit: 
and proof of fraud on tlic part nf 
the defendant is of the eJBomc of 
tlio action: but (Jiis Court will aii 
on the principle of protcctiiii,' 
property alone, and it is iwt 
necessary for the injuoclioii w 
prove fraud in the dctcndaiit "■ 
Edehtrn v. Edeltteit. 1 !>«' '■■ 
J. IL S. 186, 189. 

(Jt) Patents, Designs, and Trade 
Marks Act, 1883, 46 S: i'l Viet, 
e. 57. 

(0 Slasenger i Sotu v. X/W'- 
ing * BrM. [1910] 1 Ch. ^5'' 
79 L. J. Ch. 122. 

{g) Hay V. Jlrmviitigg (1878) 
(reversing Malins V.-C.) 10 Ch. 
Div. 194, 48 L. J. Ch. 173. 

(/*) See per Lord Blackljurn, 8 
App. Ca. at p. 2»; Lord West- 
bury, I- R. 5 H. L. at p. 522; 
Jlellish L. J., 2 Ch. D. at p. 453. 

(i) Singer Manufacturing Co. 
,. lyUwn (1878) 2 Ch. D. 434, 
per Jewel M. R. «t PP- 441-2; 
James L. J- »t P. "'i M""'"'' 
L. J. at p. 464. It may now be 
said tliat there is a special pro- 
perty in a trade name, per 
Neville J. [1910] 1 Ch. at p. 256. 
In 1863 Ixird Westbury said; 
" At law the propir remedy is by 


petition But the lutc-n decisions hav,. coi,,,- Uok to the 
.round of the «,,,. o^ („), ^.^ „^ f '» '^« 

man may caav.., W c.,to„ by falsely hoI,li„. out lu" 

forth, as being the goods or business of anath-r. Its 
upphoation zs not excluded by shoving that th,= s.yl- or 
words appropriated by the defendant are in theielves 
not ialso as he uses theui, or tliat tho pl.„„tar, if he 
.uoeeeds wUl have a virtual monopolv in aii e e lusi e 
esignation .hieh is not eapabloof r.gistrat„,n asa'^ 
■n^a. Thus a man may, generally speaking, „,sumo 
any surname he liies; hut the assumption of a part cI 
surname for tho purpose of f...udulc„t competition is I 

:™-f ^^^'''T'' *" ^'■■^' ""-■ k-1 "f i-.-.iud (n). Even ,1 
use a man's original nanio for -passing off' purp„ " 
may be so treated (o). Tho question is whether' thT d 1 
en ants action naturally tends to eauso an ordinary 
dealer or purchaser (not nooessarUy the first purehlT 
; or he eHect on the public at large is to be considered 
,t think ho IS dealing with the plaintilF or buving he 
Plaintifi's goods (p). If a spccifio nam. or thoHke 
been used in the honest but erroneous belief that it wa 
mere common property i^ the trade, this will so far 
absolve the defendant from the charge of fraud, but wU 


("0 Comparo Powen v. i?,>_ 
""'"'*'"'• 'iiies/ir ISremru Co 
tlS9«] 2 Ch. 5J, 65 L. J Ch 
»«3, C. A,, affd. in H. L. [18971 
A f. 710, 66 L. J. Ch. 7(i3, witl] 
2,5°" '■■ *"'■?»" (1836) 2 Keen 

'") /•■. Pinct t, C.c. V. .l/„„„ 
„!" /'""" [1898] 1 (-h. 179. 
"I- •'.Ch. 41, ,he,eti,ou«,„( 
"'• """"SJ nMnc in the line ot 

P. — T. 

busineM in ciucstinn was ^hao- 

lutely restrained. 

(») irarwicli Ti/rc C„. v. .\,.,„ 

llotor, 4„. Co. [19101 1 Ch 1J8 

79 L. J. Ch. 177. 

(;■) Si/tet V. ,Sj/i.7« (1S2I) 3 fl 
^ C. 511, 27 K. B. i>0; J/,„„; 
•joon'rii V. ThnmptoH [1891 I A 
<-'. 217; H..,U„,„,j .. jj,,,,,;, 
(ISOIIi A. C. 199,6,3 L. J Q 11 
381. ^ 






i hi!* 



(„t, and now to hi. knowledge,^ StiU le« 
wiU .b«n« of fraudulont intention bo » defence in the 
face of known prior, A t»der i, presumed to know 
the h.biU of tho« ho cat.™ for, «d he u not allowed tu 
ignore the natural oonB«,«er,o» of, or gettmg 
u^p h. good, in a partiouUr manner. Sometime, thi. ha« 
bLn put alm,.l a. if the plaintiff, right were an ab.oluU> 
right in the nature of property (,); but .nch a view, .t . 
submitted, would be again.t both principle and the we.ghi 
of authority (r) . 

In the United State, the rule, on this ubjeet have been 
largely developed, and of late year, have been commonly 
J^L to under the rubrip of Unfair Compet.tion. 
The term i. little known as yet in Enghah courts, 
it «em. convenient a. clearly marking the dutmction 
of ease, where the jurisdiction i. founded on fraud, or 
something equivalent to fraud, from those where a 
statutory property or monopoly i. in qucation Under- 
selling, even at a manifest loss, is not ir itseU «nf:,.r 
competition (s). 

(}) See ilUlingtoti v. ?»* 

(18S8) 3 My. S Cr. J38, IS R. H. 

271. , 

Cr) For the more modern flew 

,«,, bMitta the rocent caie. 

ulrouiiy referred to, Hendriki v. 
«„„<.,» (1881) n Ch. Div. 638, 
851, JO L. J. Ch. MS; Si"?--' 
ilaf,u1<,etuTi«g Co- "■ ^°°^ 
(1882) 8 App. Ca. 15. A. to the 
distinction Iwtwecn an action tor 
" passing off " and an action for 
deceit, and the evidence appro- 

priate to each, see the judRinMit 
of Fatwell J. in Bonnie v. Swan 
f Edgar [1903] 1 Ch. 211, 12 
L. J. Ch. 168. 

(.) AjeHo T. Wnrileij 11S98J 1 
Ch. 274, 67 L. J. Ch. I7'J. In 
each a ca-ie a collateral niiTopre- 
sentation by the vcmi'ir in 
advertising lii' R'"d8 may br 
actionable in r' j.cot of any 
damage speci',-ly produced bj- 
the miirepreseuuiticn, but »u:li 
damage only; ib. 




lo an action for n,ai;. ^ "" actionable wrong. ST- 
'o P"ve,fi„,th he ;a?roL°T"'r '^^ "'"'""•« ^ 

«"« were auoh a, to be iZh "'^''"•'"■°«'an'=cs of the 
'-' with the oxisten" „;"''" "'^ ^■"'■^-■''--is- 

'»'°fJ»i«-tt«eimti4tali!?' .'"''''"''^^ ho 

justice ■• („). Ud-tCT^l. ■"" '° furtherance of 
fails at any one of Zf ' ™'° '"'^ '' l-" P^of 

•iefined by "the Cot '"a:"''/ '" "'" '^^ ''-'-» 
House of Lords. I sltTn!; "', "'"'"^•"'' "^^ ''«' 

— ddi„-:;r^.:;:s:- 

«; The fact, have to be f„„„i 
2"" ""y' '»" the i„f„c„e, 

' I ho plaintiff may not i„ 
"r^""!" defendant'., to ^"; 

(") Bowen L. J., j,...,. 
K^E^-^S^Cc. (1883) iTTT 
""• «0, «5, 62 L J o » 
1886W,"? *""™"' '" "■ I- 

r 3 


It iB no excuM for the defendant that ho instituted th& 
prosecution under the order of a Court, jLthe Court wa. 
moved by the defendant's false cvidenoo (though not at 
his request) to give that order, and if the proceedings m 
the prosecution involvi'd the repetition of the same false- 
hood For otherwise the defendant would be allowed to 
take adv. .. age of his own fraud upon the Court which 
ordered thi' -^ -osccution {x) . 

Ai in t!.: ,. . of deceit, and for similar reasons, it has 
be^n doi,) 1. whether an action for malicious prosecution 
will lie -ainst a corporation. It seems, on principle, 
that such an action will lie if the wrongful act was done 
by a servant of the corporation in tho course of his 
employment and in the company's supposed interest, and 
it has been so held(i/). Notwithstanding dicta to th. 
contrary (r), it soems now practically crtain that the 
action lies (a) . 

Th«.™m. The reasons for tho exceptional requirement of pronf 
I'ti'^^' of actual bad faith in suits for malicious prusocutwn luno 
SfP"*"- been much discussed. It has l«eii suggested by very 
-, authority that the vrong is analogous to the' 

ihigli n 

!of privileged occasions in tho law of defamation. 

'The person against whom procedings have been 

Iz) Filzfohn V. Maekintter (Ex. 
Ck. mi) »('. U. N. S. 506 30 
1., }. y\ v. 247, i;7 B. B. 7W 
l*.>. Blackbwn aiKi Wightman 

(y) Kilvranli V. Midland X. 
Co. (1880) 6 Q. B. D. 287, 50 
L. J. Q. B. 281, Kty J.; Corn- 
ford V. editor, «•»* 118991 1 
Q. B. S»2, «8 L. J. Q. B. m, 

DftTliDg J. 

(«) See the judgmsnt in Sd- 
uardt V. HiJItnd S. Co., lart 

note; per Lord Braimrili, H 
App. Ca. at p. 250, but this »"'" 
ostrfc-ju'licial, Bee per LjuI I i 
Bcrald, ib. at p. 24(, V.'t 
Selborne at p. 256. 

(a) Cornford v. Carllon ««»* 
[1900] 1 Q. B. 22, 88 L. J. Q B. 
1020, where en objeliun on thtf 
UniiinJ was abandomd by loim^cl 
in O. .\.i and see opinion ..f tli' 
Judicial (Committee, Cit:'"' 
Life Alice. Co. v. Broun [li);ill 
A. C. 428. and pp. 61, G2, iilio"'- 

initiated without rea«onablo and probable oau« i, «rima 

disadvantageous to tho public " (6) 

• In my opinion tho «on,owhat anomalou. action for 
malc.ou» prosecution i» ba.«od on tho aame prin "pie, • 

us l, i . defamation on a privileged «oii 
, From motnes of public polic,- tho law gL p^on 

*. probablo cause for the prosecution. But if th Zon 
.buses h.s privilege for theindulgeuce of hi, porsonarsZ 
Je loses the protection, and is liable to an a.7io„ n tfe 
he malice but for the wrong done in sub,iec..i„g a o^h r" 
the unno.vanco, expense, and possible loss of reputati™ ^f 
a causeless i,ro»ecution ■' (c). '■PUtation ot 

Those suggestions, though they must can^y ^reat 
weight, ,.nd It is submitted, are correct in principi; " 
not positively binding, and it has been objected by" 
k rned writer that "there is no judicial authoriS^wTich 
-U justify the proposition th„t the institution of c5 
™««dings ..s ever b.„ pr„sume.l to bo an actional 
"rone, howevoi- vnv.t ..... .1 *" 

.rong, however vexatious they may bo' (rf). u 

dy open to doubt wholher the 

IS cor- 

the law propounded by Lord H( 

rational justification of 

[eisdidl and Lord 1)„ 


«1 Per Lord ller«^hell, Allen 
>f W [1898] .V. r. 1,125,67 
I- ■'■ Q. B. 119, 185. 

(') Per I,f,rd Davov riSBHI 
•*■ ^- •* p. 172. 07 r,. J. Q B 
«t p. 209 

"0 The Ute Mr. IV. P. Craie. 

in H Encycl. J.awa „f Bug. (2nrt 
«!•) 317. I confess to some diffl. 
'ulty in undcrstomiing exactly 
'"•"■ """"k Mr. Craies i„,<.„de,l 
to differ with Lnrd Ifcrschell- 
^inii see ro„lm direct. Legal Lia- 
"il'tj, i 327. 




had in fact oooarrod in a diianct form to any of their 

GeneraUy speaking, it i» not an aotionablo vtoug 
to institute civil proceodinga without reaBonabb and 
probable cause, even if malice be proved. For in con- 
templation of law the defendant who is unreaionablv 
sued i» sufficiently indcmniBed by a judgment in hi> 
favour which gives him his costs against the plaintiS (c 
And special damage beyond the expense to which ho hiis 
been put cannot weU be so connected with the suit as a. 
natural and probable consequence that the unrighteous 
plaintiff, on the ordinary principles of liability for in- 
direct consequences., will be answerable for thorn (/ . 
"In the present day, and according to our present law. 
the bringing of an ordinary acUon, however malicioush. 
and however great the wont of reasonable and probabk 
cause, will not support a subsequent action for malicious 
prosecution " (3) • 

But there are proceedings which, though civil, arc not 
ordinary actions, and fall within the reason of the law 
which allows an action to lie for the malicious prosecution 
of a criminal charge. That reason is that prosecution on 
a.jshargfi, "involving either seaudaUaaeEuifttJP'* "^ ''" 
t nwi h l fl Id B P ff "bertv to th n mmnn " ( h ). nf ft m nlj- iukI 

i panifcat ly importe damage. Now the oommenocment of 

(«) It i common knowledge 
A ^ itt I? f that tho rosa allowed in an 
^tA«.a*.v (r^^^.^_^ urt hardly ever a real in- 
demnity. The true reason i»t' at 
Utigfttion must end somewhere. 
If A. may flue B. for bringing a 
TOxatioDs action, then if A. fails 
to persuade tho Court that B.'s 
original suit was vexations, B. 
may again sue A. for bringing 
this latter action, and so md 


(/) See the full exposition in 
the Court of Appeal in Quart z 

(1883) U Q. B. Div. 674, 52 
L. J. Q. B. 448, especially the 
judgment of Bowen L. J. 

(j) Bowen L. J., 11 Q. 1 !'"■ 
at p. 690. The opinion? of Ameri- 
can Courts are much diviih^ 

{*1 n Q. B. Div. f.tll. 


prooaeding, in bankruptcy a^i„,t a trader, or tho analo- 
SOU. prooo« of a petition to wind up a company, i, in 
.t»U a blow .truolc at tho credit ot the pe«on or company 
who« affair, are thu. brought in question. Therefo« 
•uch a proceeding, if instituted without rca.onabfc and 
probable cause and with malice, is an actionable wrong (,) 
Other ..m,lar exceptional ca«s were possible so long „ 
there were forms of civil procew commencing with per- 
»nal attachment; but .uch procedure has not now aly 
place m our system; and the rule that in an ordinary 
way a fresh action does not lie for suing a civil action 
without cause has been settled and acoepted for a much 
longer t,me(fc). In common law jurisdiction, where* 
.mt oon bo commenced by arrest of tho defendant or 
attachment of his property, the old authorities and 
d.8tmctions may stiU be material (;,. The principle, 
are the same aa in actions for malicious prosecution, 
^.utatu mutandi,: thus an action for maliciously pro- 
curing the plaintiff to be adjudicated a bankrupt will not 
Ueunlcssand until tho adjudication haa been «t aside (m) 


(•J Vmnz Jim Gold Mining 
Co. V. Byre (1883) noto (/;. 
The oonlmry opinions exprriued 
in JohntoH v. Emerioii (1871) 
L- B. 6 Ei. 329, 40 L, J. Ex. 
201, with reference lo procerd- 
ings under tho Bunleruptry Act 
of 1869, are diupproved: under 
tlie old baniruptcy law it waa 
well Milled that an action might 
be brought for malicious proceed- 
'ngs. As to issuing eieculion for 
the full amonnl of a judgment 
partly ,ati«aod, Be Medina v 
Bnre (1847) 10 Q. B. 172, 74 
B- B. 243. Where a judgment is 
wholly MtisSod, a writ of execu- 
tion purporting to be issued 

under it is void, and elocution is 
a treipass irrespective of the 
plaintiB's linowledgo or motive., 
though without malice it is not a 
cause of action in case, which ei- 
plains tho old authorities: CUm- 
•old V. Crolrhle,/ flOlOJ 2KB 
2", n L. J. K. a. 635, C. A. 
V*) SafiJe or SaviU v. JioberU 
(1698) 1 Ld. liaym. 374, 379; 
12 Mod. 208, 210, and also in 
5 Mod., Snllicld, and Carthew. 

(0 As to British India, see Jtnf 
CItunder Soy v. s),„,„a Soondari 
Belli, I. L. H. 4 Cal. 583. 

('«) Metrofiolilan Bank V. 
Pooley (1883) 10 App. Oa. 210 
54 L. J. Q. B. 449. 





] i 


, .1 


»«ic«ocorv •■sounioN tbt quit 





'05 J Eait Uum Strn< 

Nocr>Ml»r, NtH Yofli I4G09 u"!* 

(716) 482 - 0300 - Phon. 

(716) 2U - 5989 -Foi 


It seems that nu action will lie for bringing and prose- 
cuting an action in the name of a third person maliciously 
(which must moon from ill-will to the defendant in tho 
action, and without an honest belief that tho proceedings 
are or will be authorized by the nominal plaintiff), and 
without reasonable and probable cause, whereby the party 
against whom that action is brought sustains damage; 
but certainly such an action docs not lie without aotual 
damage (n). 

Tho explanation of malice aa " improper and indiicel 
motive" appears to have been introduced by the judges 
of the King's Bench about seventy years ago. But 
" motive " is perhaps not a much clearer term. " A wish 
to injure the party rather than to vindicate tho law" 
would be more intelligible (o) . 


TV .—Conspiracy ; Procurement of H'loni/s. 
The modern action for malicious prosecution has takon 
tho place of the old writ of conspiracy and the action on 
the case gvoundcd thereon (p), out of which it si-oms to 
have developed. It was long doubtful whether con- 
spiracy is known to tho kw as a substantive wrong, or 
in other words whether two or more persons can ever bo 
joint wrong-doers, and liable to an action as such, by 
doing in execution of a previous agreement something il 
would not have been unlawful for them to do without 
such agreement. There is now a distinct decision in tlir. 
negative (g), open indeed to discussion in the Court of 

(«) Colterell y. Jone> (1861) see especially at p. 37. 
11 c! D. 713, 21 L. J. C. P. 2, W F. N. B. 114 D. .«^ 

87 R. R. 754. Why is it not a (,) nullley Su.-no,,nim] 

,orm of maintenanee? 1 Q- B. 181, 67 L. J. Q. M- - ■ 

(.) Stephen (Sir Herbert) on following A.»r...!, v '-'^ 

M^eious Prosecution, 30-39, (1890) 26 L. R. Ir. 288. Hut 


Appeal. But it waa already settled for practical puip^es 
that the conspiracy or ' confederation ' is onh- matter of 
mducemont or evidoneo (.). - J^^^i^^'^ ,, 
■>mu,gfuUy dauo.^..^.H,„.„..„p:.,r,. ^i,,,, -^ 
of .actions oa the case.for conspi^-acy ■ «. ■llZ.u.h 
Q«.w.U baiound that there existed cithc.-^ ultimate 
«te of mul,ce or ,vrong. or ^vrongf ul means of execution 
mvokong olementa of injury, to thepubUc, or at least 
n^gattvang the pursuit of a kwful object" (f). Either 
the wrongful acts by , which the plaintiff has suffered were 
such as one person could not commit alone («), ,ay a riot' 
o.- wrongful intention, if ,„aterial, was proved, an.i 
dam^es aggravated, by showing that they were done in 
»eut,o„ of a concerted design. In the singular ease of 
Oregon, v. D«fe „/ Bn,nsu,ick (^) the action was in elfect 
for hrssrng the phintiff off the stage of a thcvtro in pur- 
suance of a malicious conspiracy tetween the defendants 
Ihe Court were of opinion that in point of law the con- 


it has been ob.wrvcd by very high 
authority that "It i., difflcult lo 
Jraw any satiifaftoiy conclusion 
'rom this ease, as the moat inatc- 
ml facts are not slated ": Lord 
I.indlcy in Q„i„„ ,.. 7,^,„,„„ 
[1901] A. C. .19 j, 510. 

(r) XsuDilSlxiuiuhifLjLaiipaun 
".JrOrrnor fl892] .V. C. ",5 61 
L. J. Q. B. 295. 

(•) Bowen L. J. i„ a. (■ ;„ 
C A. (1889) 23 Q. B. Div. at 
P- 616. Cp. .iraule .T.'s inter- 
locntory question in Co^rrrH v 
■>»»>$, note (-„) above, 11 c B 
«' P- 723, 87 H. R. at p. 762: 
is there an instance of an 
•ftion against two or more tor a 
conspiracy to do, and doing, a 
tiling which would not be action- 
"hie if done by one ? " 

(0 Lord ]''ield [18921 V C 
at p. .52. J • V. 

(") " There are some forms of 
injury which can only be effected 
by the combination of many 
I persons]: " Lord JInnnen riS92"l 
A. t'. at p. 60. 

(«) 6 Man. i Ur. 205, 953 61 
K. K. 759, 897 (1844). The 
defendants jusliacd in a pica 
wliich has the merit of being 
amusing. Being a plea in justi- 
lieatMn, it admitted a cause of 
action; it was held bad because it 
avoided part only, and neither 
confessed nor avoided the rest 
Therefore the question whether 
conspiracy is of itself a civil 
cause of action was not raised for 


.piracy could be material only as evidence of malice (y) 
but that in point of fact there was no other such evidence, 
and therefore tho jury were rightly directed that without 
proof of it tho plaintiS's case must fail. 

"It may bo true in point of law, that, on thi> 
declaration V' framed, one defendant might be convicted 
though tho other were o«iuitted; but whether, as a 
matter of fact, tho plaintiff could entitle himself to a 
verdict against one alone, is a very -Ifferent question. 
It is to be borne in mind that tho act of hissing in a 
public theatre is, prima facie, a lawful act; and even if 
it hould bo conceded that ?uch an act, though don;' 
w -..ut eoncert with otliers, if done from a malicious 
motive, might furnish a ground of action, yet it would be 
very difficult to infer such a motive from the insulated 
acts of one person unconnected with others. Whether, 
on the facts capable of proof, such a case of malice could 
bo made out against one of tho defendants, as, apart 
from any combination between the two, would warrant 
the expectation of a verdict against the one alone, was 
for tho consideration of tho plaintiff's counsel; and, when 
he thought proper to rest his ease wholly on proof of 

(v) SiilfCvi'^'H V. Fluod L1S9S 1 
A. C. 1, 67 L. J. Q- U- 11». the 
HUppoaition of malico bcinfr tho 
gist of the action cannot bo ac- 
cepted. If hifcing an actor off tlio 
atago is not actionable of itself 
the addition of malice will not 
make it so. This point is not 
ntfectod by Quinn v. Leathim 
[1901] A. C. 495, 70 L. J. P. C. 
76. It will be observed that tho 
conspiracy charged by tho de- 
claration included tho purpose of 
making a riot, which would be a 
criminal offence. This U pointed 

out by Mr. A. Cohen, K.C, »ith 
the ooncurrcnco of Lord Duncdin. 
the late Sir Godfrey Lushington, 
and Mr. Sidney Webb, in a very 
able memorandum annexed to thf 
report of the Trade Ui-iKiti-f 
Commission, 1906. Cp. L. li. II. 
xjcii. 117. I am happy to «nd 
my view both of Oretjonj v. A"i« 
0/ Brumwick and of the (Jin,- 
ral question confirmed by this 
weighty opinion as wcil as by 
the dictum of FitzGibb..n L. J. 
[1906] 1 I. K. at p. 109 


conspiracy we think the judge was well warranted in 
treating the ca.e as one in which, unless the conspiracv 
.verc. established, there was no ground for saying tha't 
tho plaintiff was entitled to a verdict; and it would have 
been unfair towards tho defendants to submit it to the 
jnry as a ca^e against one of tho defendants to tho 
exclusion ot the other, when th. attention o( their counsel 
had never been called to that view of the case, nor had anv 
opportunity [been ?] given thorn to advert to or to answer it" 
The case proved was, in fact, a ease of conspiracy, or it wai 
no case at all on which the jury cou'd properly find a 
verdict for the plaintiff " (a). 

Soon after this case was dealt wifu by ' Court of 
Common Pleas in England, the Supiemc C .rt of New 
iork laid It down (not without examination of the earlier 
authorities) that conspiracy ' .ot in itself a cause of 
action; and there must be n ■ .ly damage in fact, but 
legal damage which would give „ ground of action a»ain„ 
a deJendant sued alono(o). 

In 1889 the question was raised in a curious and 
important ease in this country. The material facts 
may, perhaps, be fairly summarized, for the present 
purpose, as follows: A., B. and C. were the only persons 
engaged m a certain foreign trade, and desired to keen 
he trade in their «•.„ hands. Q. threatened, and in 
tact commenced, to compete with them. A B and C 
thereupon agreed to offer specially favourable terms to 
all customers who would agieo to deal with themselves 


(") Per Coltman J., 6 Man. 
* Or. at p, 959, 84 H. B. at 
P- 901. Ultimately the cause 
"■ent to trial and there was a 
verJirt for the defendant,: 1 Car 
4 Kir. 24, 70 B. B. 767. 

(4) UutcHni V. muchm, 
<S«p. Ct. N. Y., 1845) 7 Hill, 

104, and Bigclow L. C. 207 (ac- 
tion for oonipiring to induci. a 
testator by fraudnlent misrepre- 
sentations to revoke a devise to 
the plaintiff). See Mr. Bigrlow's 
note thereon. To the same iffert 
is Kearney v. Llinid (1890) 26 
L. K. Ir. 268. 




to tlie exclusion of Q. and all othisr competitors outsiA' 
the comljination. This action had the cficct of drivini; 
y. out of the market in quoetiou, as it was intended t" 
do. It was hold by the majority of the Court of Appeal, 
and unanimously by the House of Lords, that A., R. uii^! 
C. had done notliing which -would have been unlawful il 
done by a sinj^le trader in his own sole interest, and thai 
their action did not become unlawful by reason of heinii 
undertaken in concert by several persons for a common 
interest. The agreement was in restraint of trade, and 
: could not have been enforced by any of the parties if tlir 
others had refused to execute it, but that did not make it 
punishable or -wrongful (c) . 

It is suggested, however, that an agreement of tlii> 
kind might in some cases be held to amount to an 
indictable conspiracy on the ground of obvioub ami 
e-scessive publiu ineonvenionoe (d) . It seems doubtful 
whether effect could be given to this suggestion con- 
sistently witb tiie "\odorn authorities. 
HdaH..ti It -would seeii' to follow that it cannot he an actiouablt 
%SZy to conspiracy for two or more persons, by lawful mco.u% to 
MUoJfor- inJu™ another or others to do what they arc by law 
beaniD- ■■» f f(^ to do or to abstain from doing what they arc not 
Jlr»m. bound by law to do; and this opinion has boon distindlv 
exprcssed in the Court of Appeal in Ireland > . The 

(f) MjiiUtl Steamship Campany 
V. McG reaor (1889) 23 Q. B. Div. 
598, i8 L. J. Q. B. 465 (diu. 
Lord E«liGr, M. H.); in H. L. 
[1892] A. C. 25, 61 L. J. Q. B. 
'295. Lord Eshor was apparently 
prepared to hold that whenever 
,\. and B. make an aprreement 
which, as lietween themselves, is 
void as in restraint of trade, and 
C. snffers damage as a proximate 

consequenee, V. and 11. ■i'-" 
wrongdoers as against C Tins 
is etearly nefiatived by the d'-^i- 
sion ot the House of Lords, *™ 
tlio opinions of Lord Ualabnrv 
L. ('., Lord Watson, Loril liram- 
well, and Lord Ilaniien. 

id) Bowen L. J., 23 (J. !!■ W'- 
at p. BIS. 

(e) ritzGil)bon L. J.. >''■'■<'"'.'' 
V. CmW [W06] 1 L R. .51, 1«9. 


"^-''t to do, though to „"?""■"''"''"•'"'«'' 

."0. that ,c„o:;„v •: riot: "'; ''''' "^™"- 

On tho other hf thfim „, 
'""not, in tho ordi, • """'■'■ """^ "hieli 

"-uraMe rnTatrf'irTv '^ """-'"-''- an, 
"'oroforo, when /„ done " -l, 5 ^ " ""■"" "'"-• -^ 
>v";ch actual da^a^o I' t: t "p r.':]"'^;^ -'7" ^" 
IS lord Lindloy says (a . " ,„„ ^"^ numbers," 

™-ay„ot. L:^:i^„no;;:zr"^""'^''"- 

s" intolerable as to h~v ''"'■■""n by many may be 

-'t which onoaonr»':Lrr''d' ^"' "^"'"^ " 
""■sisteut ,vuh thornl. H . P™''"«';" and this is 

"■■■»-- tii'Jrtiirtifsrr--'' 


^tionable or unlawful i , ^'^' ™' '" tl.nns,.lve8"(A) "'^ --P-r. l^eomo dangerous and 

--4i„si:Li;:::.tL^c;— ---^ 

« v i. •'• "■ "■ "»■=!'• 

' *'i'''°S «>'"«--* .,,„fe„„ by 
.'■WB-mordcrloinduoon to 
■i' »omotl,in» to Z ', „, • • 

«« amount ,„j„,.„,„„,.„„;;7 
' P'"™"!, Blunder of tUk); 

f ""'■ ^2. where ,h„ di,.o„t „; 
dement of ,r„,n,« j. („,,, „f 
"■° Supreme Court, U. S.) de- 
•"ves mueh eomideration 

A. C. 493, 538, 539 

U) Lord Brampton «. „t 

P; 530, cp. per Lord Mai.naditen 
at p. 510. ^ 



Komcr L. J. is against it (i). If it is meant that many 
unlawful and actionable things, nuisance for example, 
are made up of elements not separately wrongful, it is 
undoubtedly true. Nay more, the wrongful character 
of a trespass to land is determined by nothing in the acl 
or intention itself, but by the external circumstance thai 
the land does not belong to the trespasser. If tli. 
criterion, however, were the mere presence or absence ol 
concerted action, it would bo difficult to say why tli.iv 
is not an actionable wrong if a number of customers lor 
the avowed purooso of putting pressure on a trade 
combine not to buy from him unless he satisfies them in 
some matter unconnected with the merits of his 
but Lord Lindlcy agrees with the Courts of Scotla.i.l 
that, if that is all, the customers are within th.ii- 
rights (k). Nor does tlie withdrawal of voluntary suli- 
scriptions which furnish a man's means of livelihoo.1 
become wrongful because it is done in concert, and lor 
tho express purpose of making his office untenable ;( 
What is the supposed intermediate region in whicU one 
man may do with impunity what two or three may not? 
It must be rather small. A joint or composite wrong 
may involve a conspiracy; -but, as we have just point-l 
out, it need not. 

Co,uTi- The present writer confesses to groat difficulty in uuda- 

mcj-notiin jt^unjing why, in Quinn v. Leai/iem, before the House of 
?Sf"° Lords, where the dicta now under consideration occur, it 

(i) aaian V. Xatioml La- 
bourrrt- Union [1903] 2 K. B. 
630, 619, 72 L. J. K. B. 907. 

(A) [1901] A. 0. at p. 339; 
Scotthh Co-op. Soeieli/ v. Olaa- 
govi Fleshera' Atsocintion (1898) 
an Sc. L. B. 64S. 

(') Kigrnei/y,. Llo>jd,mAe d'i, 
p. 331, above. That drcisioii ivai 
admitted to be cormt in 
/Sweenen v. Coote [WOOJ 1 I. «■ 
61, tho Court of Appeal WnB 
divided only on tho facts of llie 
case before them. 


by coe.0., aia cuLt :;r; 'r/o^'° t'f'"' '•'"'^- 

-n within a li„« of ..„ - ;;^^ -th .0,, which i. 
principle, a. Lord Halabury «id • • ^' t "" ^•"'™' 
found the plaintiff co„l,l 1 "'""" *''""' ^^"^^ «» 

<-" juri^prudenj^^tl^^r:/' ," ^"^ *" ^^-^ '^-t 
The fact i. that pJftlY;;;'-'^ 7^-itr' („). 

tioes i, often diificult, and l' " ° "^^ unLnfuIp^.e- 
'ite to bo relieved of the butdon TnT "l""''' '"""' 
roa«,n may to some extent account llri^ '7 '^ ^"^ 
about malice which .ns thr; J tsf' ^^ ^ 
n>uch easier to persuade a jury to find tht t^'^ ^' ^ 
■- "malicious conspiracy " than 7 "'""^ '"" '««' 

Poned. and persuade ^ C urt thaHr'"' '"""^ ''"^- 
cause of action. Allen v Fllj I T""" '" * «°<«J 
MicewiU notsupp," t JwanSa " "/' "^ '""'''^ "^ 
. ic«Mm does not ^ iJaub ' tf . ■'" "^ """"' ««''"' 

Wacy wiii. H;;\:ro"frdicSr:'""^°^ 

<»^e are to be reconciled with th. r„ '^'-named 

"■avo to tell us someday W """"" °' ^""^ ''^^^ 4 

*- to one's neighbour is aetlnable IS" ""' "''''"'' 


n.'.r """^ °" P- 2«. above. 
™lence „ naterial only „„ u,, 
" t '"eoo» .„d c«o. * 

°) Pp. 331, 332, above. 
' '""'«' 'ricnds Mr. M. M. 

con bo 

[Eng.] ed., Cambridge, 19031 

«"J Mr. M„ ,v. Salid (Th 
W of To,.,, 2„d ,d. ,9,0; at" 

f ". '^ ""> gonerally held ]„ 
To*. 287, ,„e„ae. t„ .^a con- 

I I 


justified or excused. Con.piracy wouU then appear .« 
matter of affiravation, or a, enablin^^ person, acting 
tooethcr to inlliet damage ^vhicl. merely imUviduaUetiou 
'.ould not liavo inllicted; a..d instead of a«king whether 
malieo was part of a cau»e of action, wo should ask m 
what cases good intentions, or reasonable ond probobl,, 
cause, are a justiHcation or a step towards justifioat.o,,. 
Some learned persons think the suggested prmc.p o 
dangerously wide; but the Common Law has already 
succeeded in defining many grounds of justiiieatron and 
..xeuse, and is surely eou^petcnt to delino others as no«- 
facts bring them into prominence. I am by no moans 
satisfied, however, that the recognised exceptions of tra.l. 
competition and the right to deal with whom one l.kes 
will not go mo«t of the way. There is a class of ca.,.v, w. 
,tiU have to eonsider-that of procuring a ol con- 
tract or other legal right to the injury of a pai'ty entitlrj 
to the benefit of it-whero tho exceptions ore not y.l 
adequately defined; but wo shall get no bettor definition 
of them by refusing to consider tho right of action a^^ ^i 
species coming under a more comprehensive class . 

There is a tendency in judicial dicta on theso question* 
to qualify general statements by tho use of such worJ.s ns 
•■wrongfully" or "unlawfully," which no doubt niako 
tho statements unimpeachable in terms, but prevent th.m 
from being very instructive. We do not nood tho IIou.. 
of Lords to teU us that whoever unlawfully lutoiloi- 
with his neighbour commits an unkwful act; we desm to 
have it made clear what kind of conduct is unlawful and 
what is not. 
sut«t„,y The Trade Disputes Act, 1 906, s. 1 .(«)■ has added tl.e 


(„1 6 Ed. 7, c. 47. "Trade t«Mn employers aud wortm.n«r 
dhpule " mea«. an, dUpute be- between workmen and w>.,L.,, «, 



r;:r .:::',- — ' - ^"^^Xi::: ^^■ 

lootmij. An action lies for nroeuiino. „ '■'•""""'i' 
pnrson under contract with fl,„ i • ■„ P^"""*f " '■"•"oh „f 
<n„tr„ct(r) ^'' f'*'""" '" '>™'l< l"'» '■™'™"'- 

-.». ..d 1., . .„, i, „„ ^^ ^^^^^^ ^j^ 

•Inch is oonneeled nilh the cm- 
Ploymenl or non-cmploj-moni, or 

*• term, of the employment, or 
"111 the conditions n( labour, of 
>»yper,on. ■' Wor! c„ " me«ns 
"I»on, employe 1 in trade or 
ind«,try, wliellior or not in the 
"nployment of the employer with 
•*«"n « trade di,pule arises- 
«■ 5 .'3). See the whole Act 
'" Appendix. 


ir) Luinley v. B,e (1853) 
^ E. t B, 216, 22 L J 
«• B. 463, 95 n. K. 501; 
?""■■"> J- llaa (1881) 6 Q. B. 
D-. M3, 50 L. J. Q, n 305 
eta»ri,.„ Coal r,. V. «„„;, 
"°'" •"""•'•'■ '■'«'"••".•»» C19031 

.!J9, 71 L. J, K B. 525. 

(•).•(»?'. V. Chicago, St. fa.d. 
«■"■ Ky. (1883) 151 U. s. I, 13, 


the deoi.ion. wouU linaUy bo nappoited ^t). Buv now it 
i, l»id down hv the same ...ithority th^t tl>o ™.i»o ot a. ti.m 
oxi«t.. and that onl.v some •>( <hv ivason- foimerlv Riv.n 
tor it wore mi«..n«-ivo,l . 'I think," *i.v» Lord Ma. • 
naghte... -the decision- (in Lumkin ■ <'!!< ' wa» nu'l.i. 
not on tho groui d of mulicioun intention. ... but on 
the ground thut a vioktion of a lo)?*! right commitl.d 

knowingly is li cau-o of action, and timt it i» a violai 

of logul right t.. interlero witli contractual relations rcc "l- 
nizcd by l.w if there be no sullioient justification for iL- 
interfer^nec. • Lord LindWy adds: "The principle ,„. 
volved . cannot he confined to inducement* to bn.k 

c«ntr.«=ts ot service, nor indeed to indueemonts to brc:,k 
any oontraets. The principle wUioli underUea the d«.M..„ 
lisuehes all wrongful act. done intentionally to damajro ^ 
'particuki individua aud actuaUy damaging Uini " 

Aceordinglv ac finding of "malice," in the son., of 
jpersonal iU-wiU or any other ovU motive besides tlio ii.un- 
ition of doing an act which violates the plaintiff . kno«., 
'right, Ujaecessary to complete tho cau* of action, nor is a 
desirable to use the word ataU in such cases (x). Mill I'- 
can the use of iUcgal means be justified by any unio.mi .! 
good intentions (y). 

(I) Mien V. eiovlt tl8»8J A. 
( . 1, per Lord Watoon «t p. 107, 
Lord Ilerscholl nt pp. 121 »«?■■ 
Lord .Macuaghtcn at pp. 153, 
154, per Lord Davey at p. 171. 

\. C. at pp. 510, 533. A later 
uttcmpt to exclude negative 
undertaking!, from the scope of 
" contractual rolationa " »-a» 
overruled by the Court ot Appeal 
in yalioml Phoml/raiih Co. v. 
£,ji=.-ifi-BeU ('Gn90''f- Phonnf/raph 

(Jo. [1908J 1 Ch. 33.i, *v v. 
eially per Kennedy L. J. 
p. 366; 77 L. J. Ch. 218. 

(af) Jttatl V. Frieiifl'if ■>J' 
Operative Stonemasons \ I'JU- 
K. B. 732, 71 L. J. K. 11. 
C. A.i South Wale. .«<■ 
Federatioit V. Gtamor<J".t ' 
Co. [1905] .\. C. ?39, -iVI, 
(I/) [1902J 2 K. 1). .i: !'■ 
per Collins, M. H. rto..ic 
pre*si"ns towards Ilic cii.l "> 
judgment can, with great rcsj 

•" - unworthy .uito. "".'" ^^""''""'-S^mcn, 
h accepted vi„«. that t LruL ■ , " " *"" '""" '^" 

I in denidof the ,i„ht of tV, ■ *•''"■ ""'■ " 

He.o the .,„e .^ l^^ ^^^"7'' """'""" '"'■ 
-ith which tl,e Court o" V„ , ', '"^"" '" " ''™™"" 

;P»f t.„;rr::r rdTr;s:^.r' 
— ^l;«i;:it'z^"""'"™---^- 
ticular merits (e), ' '^ P"" 


linducing other neonL. f„ T , J .1 "'"''cation for 

of coUecti.«'„ n.en.Vv::eht; rtraj""""'^ ■""'""' 
-oh thing, we. d.„„ bv the I th r,': tfl"" '"' '' 

™.He, before thoTr,.deB.p„te:S::f,;:;X';-:^; 
''•nilj' be reoonrilod with thce 
'""ly died i„ ,he text ,,„„ 

„ '^1 Per .Stirling I,. J. f,5„3j 
■ i^- "■ -"7; and „o various 
'^'•'■■; P«l in Coleridge J.', dis- 
'owinir judgment in L„„,„ ,. 

(') ll'alkrr V. IJrar.:,, (157, 


107 Mm8. 535^ .555 
■ 903] 1 ,,. ;,. „g 2 ^ J, 

'<■> riMS] .1, c. a,' ,, 24„ 
|.or Lord J.„„. „ ,. • 

f-"rd r.indlej-. ' 

''■ ; 



of remote- 
neaa of 


d<„„»g« in its quasi^rporateoapocdtyCcJ). On the whole 
we stiU have to say that the exceptions to th.« kind of 
liabUity are imperfectly defined, and that the disposition 
of our Courts is to be very cautious in admitting them. 

Another point of difficulty in these oa«es, once thought 
formidable, is that the damage may be deemed too remoK; 
to found the action upon. For if A. persuades B^to 
break his contract with Z., the proximal* f'^^ °\y 
damage, in one sense, is not the conduct of A. but the 
voluntary act or default of B. There was a time when 
Lord Ellenborough kid it down as a general rule ot 
law that a man is onswerable only for "legal and natunu 
cnsequencc- not for "an illegal consoHU nee, that is. 
a wrongful act of a third person (e) . But this opinion ,s 
now disapproved (/) . 

The tendency of our later authorities is to measure 
responsibility f"or the consequoncce of an act by that which 
appeared or should have appeared to the aetor as natural 
and probable, and not to lay down fixed rules which may 
run counter to the obvious facts. Here the consequence 
is not only natural and probable- if A.'s action has any 
consequence at ail-but is designed by A.: it would, 
therrfore, be contrary to the facts to hold that the inter- 
position of B.'s voluntary agency necessarily breaks tLe 
chain of proximate cause and probable consequene... A 

(d) (?iAka..-V. XaAioitfd La~ 
ioxr.r.' P»io» [1M3J 2 K. B. 
600, 72 L. J. K. B. 907, C. A. 
Nor can »uch act) be iuslUed by 
way ot reprisals for breach of 
■ome other contract; Smilliiet v. 
national Auoen. of Operative 
Plaitorer, [19091 1 K. B. 310, 
887, 341, 78 L. J. K. B. 259, 

C. A. 

(,) yicail V. Wiloaekt U*"') 
8 East 1, 9 R. R. 3«1. »'"' '" 
2 Sm. I.. C. 

(/) See Lynch v. KnrQU p 
(1861)9H. L. C. J77; Clark i.l 
Chamber, (1878) 3 «. B. D. 327. 
p. 50, above, and notes to 1 1^«" 
V. WVoocks in 2 Sm. h. C. 


proximate cause need not be an immediate oaus... It doee 
not he ma man's mouth to say that the oonscquenoe 
which he deliberately planned and procured is too remote 
for the Jaw to treat a« a oonsequenoe (g). The iniquity 
of suet a defence is obvious in the grosser e^mples of 
ho criminal law. Commanding, procuring, or inciting 
to a murder caunot havo any "legal consequence,' the 
act of comphanoe or obedience being a crime; but no 
one has suggested on this ground any doubt that ihe 
procurement is also a crime. 

A further question, not yot fully disposed of, is how Iod„».. 
far It may be an actionable wron^ to persuade or SVot 
induce a third person to do something to the damage "',«»°'- 
of the plaintiff, that thing being such that there is -■■^"1. 
no legal remedy against the third person for doin- if 
for example, where A. persuades M., who has not made 
any contract with Z., not to employ Z., or persuadee 
Z. not to work for M. Forty years ago almost cv„ry 
English lawyer would have said without hesitation that 
no such action lies. About twelve yc-^s ago many 
English lawyers thought the House of Lords had so 
decided in Allen v. Fto««(A). But that decision, it 
must now be understood, was based on the finding of 
fact that thei-e was no threat, persuasion or inducement 
at all, but only a warning given by a person who liad 
no control over the event. Obviously there is a real 
distinction between the threat: "Unless vou dismiss 
A. and B., I shaU call out the rest of the men " -md 
the warning: "If you do not diami.. .1. and B the 

(.ff) "The intenHon to injure 
Ike plainlitt negativM «11 e.»oMci 
Mil disposes of any question of 
nmoteneM of dumajre'-r Lord 

Lindley tl9ai| A. 0. at p. 537. 
This doej not loucli tlio defence of 
exereise of common riglit 
W [1888] A. C. 1. 

i|Jll_ HI': |:tll 


rest of the men will leave work." Putting aside case* 
of manifeet coercion, it does not appear that any test 
for this somewhat delicate discrimination has been laid 
down. The nearest approach to authority is the dictum 
)f Homer L. J. that "a person who, by virtue of his 
)08ition or influence, has power to carry out his design " 
nay be liable for preventing a man, by influence witli 
(possible employers, from obtaining employment (i; . In 
Massachusetts it has been held that, whore an employ.r 
Ihad contracted with a trade union to discharge any 
workman of whom the union disapproved, and the union 
Irequired' him to discharge the plaintiff, a non-union 
iworkman, arid he did so, the demand of the union was 
fan actionable wrong against the workman, and the 
contract, being in effect for an unkwful monopoly, was 
no justification (fc). The question may sometimes be put 
in this form: whether, as a matter of fact, the persuasion 
is of such weight that the resulting act is in substanc? 
the act of the persuader (J). But perhaps it is not safe 
to formulate even so much as this; though it is notorious 
that what is on the face of it m^re persuasion may really 
havc extra-legal sanctions behind it which convert it into 
a command irresistible to a man of ordinary firmness and 
prudence; and if so, how does it differ from intimidation? 
For those who like it, indeed, there may still be the 
resource of saying that persuasion of this kind is actionabi.' 
only when two or more persons combine in exercising it. 
But it has already been submitted that this doetrine ot 
conspiracy gives rise to more " d worse difliculties tlian it 


(0 Gibtan \._Nat\itnal la- 
bourari' Uninn [19031 2 K. B. 
600, 620, 72 L. J. K. B. 907, 
C. A. 

(*) Berrv v. Donoimt (1905) 

188 Mass. 353. 

(/) Mr. Street, Fnundatinm of 
Ufml LUbility, i. 353, 351. at- 
tache-H much importance to tins 

"•o"!""*. I„ any caso, those questions involve subtle 

of i !;■ ."'" """"p' '*' •'""^ ''"^- ">.. sph,.™ 

Wd fel ; •"•, r " '"'"^ "'"^ ^"^"^ considerations a 

^ -1 I ohc, . It seems that if 7... by wilfully .loceivine 

Q ,n noes h™ to do „„aet injurious to A., this n^aT 
.g"c A „ eause of achon against Z.. at anv rntn if Q 

™ld have committed a breach of some duty toward! 1 

>^dom, the same act ,vith tno.l.^g, of the .al 



Bi'ht. ta that, when persuasion is acted upon to th.. 

::';:;:: : "' '''"'"■ "™" '"'^''" ^-^" •---•^^ t 

pusuuler or a natural and probable consequence of 
.' -t. the persuader is liable to an action at the suit of 
ti.o person damaged^f he haa either used unlawful means 
uoh as ,„t™.dation (whether open or disgu.^d aTper 
asu,n dece,t or corruption, or procured^ Iv 
umshablo or traua^lent act; and that he is also liable" 
b^.t sub,,eet t„ exceptions in the nature of privilege, if thj 
«. procured was a br^ch of contract or a mefely ci7i 
mm not .nvolving breach of the peace or fraud This 
«»"ld it is submitt<xl, an intelligible and fairlv 

{•»l -Vo£ionj/ fhonogca^Ui. Co. 
\^Mm^,U, Co. [1908] 1 Ch 
»■ 77 I.. J. Ch, 218, jiidg- 
-'""' ol Kennedy ].. .1., and 
itmile) Lord Alver»ton,. C J 
Bwkley L. J. thought ll,e fui-l. 
■mounted to procuring a breach 
'" '■"""act. The agreements 
wre between mannfacturere 

and wholejalo and retail d..alors 
in a common and incria-ing 
formi it may theroforo bp noted, 
though not strictly relevant here, 
that an objection on the ground 
of restraint of trade was men- 
tioned in the Court below but not 
seriously argued, see [1908 1 1 Ch 
lit pp. 347, 356. 


enee with 




Moeptable rule. No one, liowovcr, is more oonsoious than 
the writer that in the present state of the authorities all 
oonjeotures on this subject must be advanced with thf 
greatest di£Bdenoe. 

Generally speaking, every wiUul interference with the 
exercise of a franchise is actionable without regard to the 
defendant's act being done in good faith, by reason oi a 
mistaken notion of duty or claim of right, or being con- 
jsoiously wrongful. " If a man hath a franchise and is 
hindered in the enjoyment thereof, an action doth Ho, 
which is an action upon the case " (n). But persons may 
as public officers be in a quasi-judicial position in wliiili 
they win not be liable for an honest though miatakm 
exercise of discretion in rejecting a vote or the like, but 
will be liable for a wilful and conscious, and in that bids.' 
malicious, denial of right (o). In such cases the wraig, 
if any, belongs to the class analogous to malicious pr.e, - 

The wrong of maintenance, or aiding a party in litiga- 
tion without cither interest in the suit, or lawful cause of 
kindred, affection, or charity for aiding him, is lik-wiss 
akin to malicious prosecution and other abuses of I gal 
process; hut the ground of it is not so much an iiid- 
pendent wrong as particular damage resulting lioiii 
" a wrong founded upon a prohibition by statu.x; ■ ii 

(») Holt C. J. in Aihby v. 
White at p. 13 of the Bpo=inl re- 
port Brst printed in 1837. Tlie 
action waa on tiie eaae merely 
because trespass would not lie for 
the infringement of an incorpo- 
real right of that kind. The right 
to petition Parliament is not a 
franehiso in the senae that any 

elector can compel \\U rcr'o^i'ii- 
tative in the House of Coiiiiiioiis 
to present a particular petition: 
Chatferi y. OoUtmiil [1»M] ' 
Q. B. 186, 63 L. J. Q. B. •>»■ 

(o) Tozer v. ChUd (1857) Es- 
Ch. 7 E. & B. 377, 2li L. J. 
Q. D. 151, 110 U. li. Iiil3- 



«rie8 of early statutes said to be in affirmation of ti,, 
common law-",vhioh makes it a criminal act and a 
mudemeanor" (p). Honoe it seems that a corporation 
cannot be guilty of maintenanoe (p). Actions for main- 
tenance are in modern times rare though possible (« • 
and the decision of tho Court of Appeal that mere charitv 
with or without reasonable ground, is an oxcuso for main- 
tammg the suit of a stranger >i, ,lo,.s not tend to 
encourage them. 

It was thought for some time that hindering a „,an in ^^^,, 
his occupation or livelihood was a special c:;uso of action «°« "'"> 
A judgment of Holt C. J., delivered in 1705 (,), and Sf'not 
followed (or rather, perhaps, incautiously extended) h. ISSfl 
the Coi., of King's Bench in I SOS lt\. but on the whole '"'*°- 



(?) Lord Selborns in Metrnp. 
Bank r. F„olty (1883) 10 App 
Ca. 210, 218, 51 L. J. Q. B. 449. 
Cj) Bradlaugh v. X^udcacile 
(1883) a Q. B. a. 1, 52 L. J. 
Q. B. 454; BritM Cmh and 
Parcel Conveyors v.^oi, 
^tore Service Co. 11908J 1KB 
1006, 77 L. J. K. B. G49, CA.' 
(indemnity given in defence of 
one's own interest is not mainten- 
ance). Aa to wliat will amount 
to a common interut in a suit so 
as to justify maintenance, A/a- 
limler v. Ilarnen (C. A.) [1895] 
1 Q. B. 339, 64 L. J. Q. B. 76. 

(»■) Harria v. Briaco (1886) 17 
Q. 1). Div. 504, 53 t. J. Q, B. 
'23. Not llie less so because tlie 
charity is founded on agreement 
in religion: llcUen v. Thompmn 
[1907] 2 K. B. 489, 76 L J 
K. B. 889. 

(») Keeble v. HickeringU! 11 
Kasl, S73 »., 11 K. B. 273. 

(') Cnrrmgtcn v. Taylor, 11 

Knat, 371, 11 li. B. 270, see per 
r^ord Watson and Lord lleraclie:i 
in Allen v. Flood [1898] A. C. at 
pp. 103, 135. Tliere u notiiinf; 
about tlieae decisions in Quinn v. 
T.eiilhrm. It is not ea.<y to sec 
what the jury in Carrii,,jtun V. 
Taylor really found the facts to 
be. I suspect tliey meant to lind 
that the defendant, cruising off 
tht plaintiff'.? decoy, flrst flrcd at 
random to frighten the wild-fowl 
out of the decoy, and then shot .i 
number of thera wiien they cam-' 
out; and it those wore lliu facts 1 
do not see why it was not an 
actionable nuisance. Cp. Ihhut- 
ton V. l>K,t (1865) 3 Ji. .ic C. 044, 
34 L. J. Bi. 118, the unanimona 
decision of a strong Court, where 
scaring away a neighbour's game 
with Hroworks was hold action- 
able, and not justifiable by way 
of r'.;iaiiation for the plaintiff 
Imving enticed away the defen- 
dant's game by laying down food 


1 1 


neglected by text-writers iind .iud},^* till the later years of 

the nineteenth century, was the supposed authority for 

this. Holt certainly said that "he that hinders another 

in his trade or liveliho(Kl is liable to on iietioii for so 

hindering him," whether a franchise is interfercMl wit! or 

" 11 violent or malicious aet is done to ii man's occupation, 

profession, or -ivay of pettinp a livelihood." But it se«m« 

the better opinion, iis the result of recent discussion, that a 

(special right not to be disturbed in ones business is nnf 

' known to the liw . So far as any distinct unlawful means 

are used, damage caused by tliem is actionable whether ii 

is damage affecting the pkintiff in the way of his trade or 

not. So far as there is damage without the use of specilio 

unlawful means, it seems that the action, when it lies, is 

one of two things; on the wider view propounded abo\. . 

an action for doing wilful harm to the plaintiff witlioat 

justification or excuse, which in common law pleading 

would I* a special action on the case analogous to 

nuisance; or on the narrower view that there is no sath 

general duty not to harm one's neighbour, but only a 

number of duties defined by different causes of action. 

an action for nuisance. A man's freedom to carry on his 

business is of common right, but not of a higher kind tlian 

any other common right. It is true, no doubt, that ni 

ciises where the plaintiff has to show actual damage the 

kind of damage most capable of definite proof, and mo-l 

likely to impress a jury, will generally be damaire to lii- 

business; this, however, is not matter of law. 

A learned and careful discussion of the modern dceisiciis 
down to 1902 by Mr. A. V. Dicey K. C. (by whose 
general concurrence I am much fortified) will be found in 

on hia own land. It seems porters, that the raasc of ai-tk.n 
assumed by every one, and vua wag nuisance, 
certainly understood by the re- 



L^' "; ^"i'• '""^' '""' '' ""*-^' ^ p°""«' ""t ""It the 

judgment of B,„von L. J. in M.,,„iS.8. C„. v. .UeGV.^, 

frequency and rc.sp«.t, and should l,e »a.fullv studied i,, 
this connexion. 

The upplication in England of the piinciplc^ above IW.. 
discus^ ha. now been limit.Kl by the onaetmen., that tTTZ: 

.... act done h, a pe..„„ in „on,..„p^Hon of fuHlKTanoe 
of „ trade dispute (x) shall not h. actionable on ,he .round 
only that :t ,„duoe« some other person to break a contract 
of employment or that it i, an interferen«. with the trade 
business, or employment of .ome other ,.rson, or with the' 
.ght of some other person to dispose of his capital or his 
labour as be wills," and that ,i„ effect; the iui.ds of a 
tra,le union whether of masters „r workmen cannot be 
re ,ch^ by an action a^inst the bcKly or it. repr«c.ntativ6 
members (j^ . It docs not appear that the former of these 
two sections is intended to exclude the right of aotion 
ga.ns an individual in a case of open violence or Z 
timidafon; or, indeed, that it alters the law in more than 
one point (.); the precise effect of the word " only " is no 
doub open to differences of opinion. But it wouid not be 
»fe to assume that the principles thus cut down may not 
be .mportont hereafter in some other branch of the" law 

urisdictions, except so far a, the very peculiar English 
legislation may find imitators. ^ 

(") (1889) 23 y. fl. Div. 598, 

W It seemi guch a diipute 
"■'"t be already raisting or im- 
"■■nrat: Conxay V. n-ad, [19091 
■> '■■ 506, 78 L. J. K. B. 1025 

(y) 6 Edw. 7, e. 47, js. 3, 4 
«w pp. 98, 99, abovo. "Trade 
dispute " is deSned in s. 5 (3). 

(«) The liceiMing of proourinf; 
breacli of contract without the 
use of means otherwise unlawful 

Hi; iiili 



duty to 


Title, juH. 

X.— Duties regarding Properti/ generatty- 
EvERV kind of intermeddling with anything which is tho 
subjectof property is a wrong unkss it is cither authorizd 
by some person entitled to denl with the thing in that par- 
ticular way, or justified by authority of law, or (in some 
cases but by no means generally) excusable on the grouiiil 
that it is done under a reasonable though mistaken suppii- 
siiion of lawful title or authority. Broadly speakinfr, \v.> 

ioueh the property of others at our peril, and honest mi»- 
nke in acting for our own interest (a), or even un liomst 
ntention to act for the benefit of the true owner (fc\ will 
vail us nothing if we transgress. 

A man may be entitled in divers ways to deal with pro- 
perty movable or .jnmovablo, and within a wider or 
narrower range. He may be an ownnr in possession. 
with indefinite rights of use and dominion, free to give or 
to sell, nay, to waste lands or destroy chattels if such be 
his pleasure. He may be a possessor with rights litlier 
determined as to length of ;ime, or undetermined thniigli 
determinable, and of an extent which may vary from b ing 
hardly distinguishable from full dominion to being stiii th 
limited to a specific purpose. It belongs to the law of 

(o) UoUittl__l^owler (1875) 
L.E. 7 H.L.757, 14 L.J. Q.B. 

(&) In trespass, Kirk v. 

Oregory (1876) 1 Ex. U. J,;. B 
L. J. Ex. 186: in trover, H'mt 
V. BoU (1874) L. B. 9 E\. 86, 
13 L. J. Ei. 81. 


PJ^rty to teU u. what .re the rights of owner, and po,- 
^", and by what aot. in the law thoy n»v be <J^ 
Wer«d or destroyed. Again, a ™a„ ^..ZTC 

Slo^":; °' "" °''r """"■' '-'<'- "-e owner 
IZ^V """r'"""'^ "'"■ '"•'" P*-™"'. without 

«hioh denl« with easements and proHts \™,„ i, 
be anthori^d by Uw, Tor the el^^ of ^11: 
puxpo«« of public .fety ard convenience, or atdell; 
fonal conduuns for the true owner's benefit, to ^torfere 

a.y claim We have seen somewhat of this in the 
chapter of -General Exceptions." Again he Z.K 
ntt "' l""^"' "' ''' ^-- orTllThic^' 

wrongful. Such consent is known as a licence. 

in!!!tL''™'""'' """• '"""""^^ '" '^^-l -i't Property T,„. 
m specfied ways, arc commonly conferred by contrlc^ ^'^--' 
.• m pursuance of some contract. Thus it ofCL" °^'^' 
dopenas on the e.ister«, or on the true constrS o" 
contract whether a right of pro,«rty exists, o whi 
1' the extent of rights admitted to exist A 

ground of fraiiH Tf i "B"'™! Him, on the 

.ods, tJu/^rdefefib^ xry":„nr:,? r 

P^^aser in good faith has aU ti^ie^u'tltr 



stance* of the fraud may have hcoii such that tliire »a. 
no true consent on the purt of tho Hn.t owner, no < ontriK i 
at aU, and no right of property whatever, not m much u- 
lawful posowsion. acquired by the iippurout puri.luis.r. I f 
so, the defriiudcr has not any kwful interest which h' am 
transfer even to a person acting in good faith and reason- 
ably; and the ultimate purchaser acciuiros no inaunor of 
title, and notwithstanding his innocence is liable '.i.< a 
wrong-doer (c . Prim iples essentially similar, but nlleilr,! 
in their application, and not unfrequontly disguised, i.v 
the complexity of our law of real property, hold good .,1 
dealings with land {d) . 

F,xo«i>- Acts of persons dealing in good faith » ith an 

pZLion owner may be, and have been, protected in various wo i> 
and to a .arying extent by different systems of law 
The purchaser from an apparent ownor may acquire, ;i- 
under the oommon-liw rule of sales in market overt, a 
better title than his vendor had; or, by an extension in 
the same line, the dealings of appanmtly authori/.d 
agents in the way of sale or pledge may, for the security 
of commerce, have a special validity conferred on tliciii. 
as under our Factors .Vets (e) ; or one who has innoccntlv 
dealt with goods which he is now unable to produce or 
restore specifically may be held personally e.vcusctl. sivius 
the true owner's liberty to retake the goods if he oan Hm\ 
them, and subject to the romodioB over, if any, whiili 
may be available under a contract of sale, or a warranty 
for the person disiKissessed by the true owner. Excii-' nf 
this kind is however rarely admitted, though niiicii tin' 

(if f'ertaiu 
in inx>d 

(o) Ilollint V. Futcler (1S75) 
L. R. 7 H. L. 757, 44 L. J. 
(J. B. 169; Cuniij "■ I.iudmy 
(1878) 3 .4i>p. Ca. 459, 47 L. J. 
IJ. B. 4«!. 

((/) See Pitcher v. Jttinnu^ 
(1871) L. R. 7 Ch. 259, 41 L. .1. 
Ch. 485. 

(*■) ConBoliilatod by the Fat tor« 
Act. 1889. 32 k 53 Vict. o. IV 


tit" (3."r:;:irr"" 'rr ■""^'"' ' -^t- 

"ught not to be Rreat diffl^,,!., ■ i ' '-""li^" 

..mount, t aifficult.v m d,.to.miuii,g what '"'""• 


11 oi ttth:L"/^v? ""' "' " '-''--' ^" ">^' 

t«^.^ ownoioW. -^n owner m possession was Dro- 
"I possession woro obsouru and woak T,. tP ■ i 
<ontin„es so with regard to chatt^^ For la^ 't' '' 
'te "true owner" of goods is th.. ^ i '^^"'^ 

l'e«on, entit,«, to in.S;;^~ne ^ ^ '"" 

'ho common law protects ownership only through r,„ 
«rj- right, and remedies. The rcversil^ 7 ^ 

~ oi; .ho f™,hoider or ;rr:~ rTfT?- 

</; s™ J.-, w. Muitland'. 

^""!' L- «. K. i. 324, ii. -481, 

i., •■ami.ridgc, 1311, whorr div,.,- 
prolitoblc ccimpariyom of tli.- 
rulo. vonciTning r,.„l and „or. 
sonal pn.pprty will !,„ f„,,„^ 

i f 

!' !' ! 



conveyanoen it ii regarded u a pr««!iit «Uto or intcro.t. 
But when it hai to be dofondod in a court of oonimou 
law, tlie forma of action treat it rather aa the ahadow 
caat before by a right to poaaoaa at a time ttill to come. 
It wa« onoe aaid that there is no dootriw of ponowicin 
in our law. The reason of thia appoaranoo, an appcar- 
anoe capable of doooiving even learned persons, is that 
jpo»se»!.ion lias aU but swallowed up ownership; and th.- 
irights ol . po««(«eor, or one entitled to possess, havr all 
'but monoi-ilized the very name of property. There is u 
common phrase in our books that posKssion is prima fach 
evidence of till.'. It would be low intolliftiblc at lirst 
sight, but not lees correct, to say that in tho duvolopeil 

tyster- of common law pleading and prooiMlurc' jwof of 
."itlo was material only as evidence of a right to possess. 
,Vnd it must be remembered that although forms of 
action are no longer with us, causes of action ar.. what 
they were, and cases may still occur wlicro it is ncoilfiil 
to go back to the vanished form as the witn.-ss and 
measure of subsisting righU. The sweeping protection 
given to rights of property at this day is made up hv a 
number of theoretically distinct causes of action. The 
disturbed possessor had his action of trespass (in some 
special cases replevin); if at the time of the wronpr .lone 
the person entitled to possess was not in actual l.fral 
possession, his remedy was detinue, or, in t'.e developed 
system, trover. .\n owner who had neither possession 
n,;r the immediate right to possession could redress him- 
self by a special a^Hon on the case, which did not ae.iuire 
any technical nam". 

PoMMrio,, Notwithstanding first appearances, then, the common 

f^na™, law has a theory of possession, and a highly elaborated 

one. To disouss it fully would not Ik uppn.prialo 


tell what wroiiffs ,». „. kT f"*" "• '"^"re *« can 
over it, or by otl^n. T T '^ ''''^"■™' ™°'™' 

present po«,.r thereof I, ■ ■ '^ '""'''' ™""'''' « ">» 

™"od ■'^^.r'S'::csx':s:: tit'- 

a rightful origin TI,o ""■'' ""' h"™ 

«nd not for a^v fixii ^ ? ""'' *" ^- g^'^'fu'Iy 

P'-sion. hotL .led c"i. """";'■'" P'-y--' 
-.M.or logo, p«^,,i„„ ™ :„" f^ rilL *""'"'' '"' 
'- legal and rightful nj trl^^tT^ ""• 
as against every one but A • ,vh ilc A T ^ '"" 

but has a ri»ht tn nn. 1 "^ •=°' possession, 

"og, thrwronllT ^"'""^ ""^^ '^1-«>d bv 


«"l«tanoe of trespass b^, takin^and "^ 



"■.. ■ ""gl" •nd Ihe orient 

l<) Vet il i, „„t ,„,„; 
'» oould not maintain tr,=p,." 
tyt . .tranger; «e if„„r. v. 

P. — X. 

38 K. R 756. The 1«„ about 
llio custody of ,„va„t, and n„. 
lalod from time to tirao, „„rt ha, 
nover been defined a, . „h„|e 
ftf..ap» the l,e»t reaaon why a 
bailee at will should have poL,. 
A A 


snd oon- 

a no«.»ary condition of tho offence of larceny at con,n.on 

^Tho common law, «hon .t must choose 
donyin^ legal possession to the person apparently n 
p^'Fon !na attnbuting it to a wrong-doer, generallv 
p to the Utter coarse. In Homan law there .s no 
i general tendency, though tho results are olte,, 
similar (»). 

Trespass is the wrongful disturbance of another 
Lrs n's possession of land (fc) or goods. Therefore 
'cannot be committed by a person who is himself m 
■ r^r- thou-h in certain exceptional ca^es « 

; possession ti), tbou^u „£ goods m.y 

idispunishable or even a rightful possessor or g 
^by his own act, during a continuous physical eontio 
ik himself a mere trespasser. But a possessor n. 

::itht~h1- aft;' It h^ hecomo his duty to return 
; :, or .: may convert them to his own u». a .Uir. 
of which the scope has bc^n greatly extended m 

sion and a .crvant .hould not .» 
that the bailee, while the bail- 
ment lart., can deal with the 
thing in any way consistent with 
hi, contract, while the servant 
must deal with u thing in h« 
custody according to his masters 

will not tho loss ao bocauBO that 
will may be and often is to give 
the servant some discretion. 

(i) Cp Holland, " Elements ot 

Jurisprudence," Ulth ed. 1S9 »,?. 

(!c) Formerly it w-is said that 

tresi.a=s to land wan a disturbance 

„„t amounting to disseisin, 

though it might be " vicina dis- 
seisinae," which is explained by 
"«i ad commodum uti nun 
possit." Bracton, to. 217 ». I 
do not think this di.ti.iitioi. was 
regarded in any later pfrioil, " 
was over attempted as to g. o Is- 

(I) F,,<l.,a. mortgagee of cltittd- 
j-lio has taken possession c.umot 
:ommit a treipa-s by rMWVing 
■he gooils, alUlough the nwrt-asur 
uny meanwhi.e have tcnJcr.d Ihe 
mount due; J«hMm v. /'i,-"« 
1893] 1 a- B. 51-', 112 i" ■'• 
U. B. 291, C. .V. 

modern law Tin.- „„ i. 

to rofrain from meddIL JV"", ''"* "' ''"'^' "''""■y 
h- another, and^l ^fn f:!' ^'T ' '-'■f"^ Possessed 
- Lave lawfully g"t™: ulZ """"'.^ Po-^-n which 
l..oaoh of theaoprod "3dStt r'f """' "'''' "'" 

appropriate remedies But T , '. ''"""'=' ""'' 

'l-'inetions i„ p,,,ti,„ ^l^/';;:; "^7™"- "i' these 
■■"^«lts, and a workin" ,n! '' '° ">'"'<'™blc 

'"■■"ons which (liko "1 T" "■" ""■™ ''■ ''«-'-"t 
extended the u2l„ ,0. t"! 7'' ""' ""^""""^ '■'■^-'>'») 
^:- intricate and dit: ^'I'lr/'Tt! "' ""'^^'- 
tiio i-emodics of an antnnl """"'■ On tlm on<. 1„„kI 

- persons who ha' ;1 ~ ''''" '''''^- »™"*" 
other hand tho person ,vro„ > '""'""' ^"'^' °° ""' 

l"s option to pr" ;r T "■" """^'^""y ""-V"! at 

"■— ^Hai:?:c.':rfrorr-"- 

excusable possess', ,,. "' ""X '-'it^' 


,«'"a„geable. Detinue, the" Ide S '^ ^:'!°"^ -"-- S:!.-- 
I'ceovcry of chattels, was not ,r . ," " ^" "«> 

?o-all.v preferable t; treat redete;' """ '' ^™' 
and sue in trover („) 30 m , ' "'"""'■' "^^ » eonvorsion 


'cL„ "■ ""'•""'' ""'""-at 
Mtrmfive po»,ca,ot,,",„McJ 

'■ ™ «« executor, indppen. 

■■.ently„f„„yp, .,^ 
sirni or Iraniifer: fii; > ' 

Till, u t , possession. 

belli r"'""" "'°^° "PP™™ t» 
be tho only really Mrrert one 
l«; iJiaetst. iii. 152. 

A .1 



.eded by ejectment, a remedy at first introdu<«d merely 
SI protection of leasehold interests W>th aU th.r 
arifieial extensions these forms of actiou d.d not com- 
pletely suffice. There might still be creumsta^ees m 
which a special action on the ca«e .as required. And 
these eompTcations cannot bo said to 1k> even now .hoUj 
obsolete For exceptional circumstances may still ocoui 
L vib it is doubtful whether an action lies wrthout 
;.„of o: actual damage, or, assuming that the plamUlI » 
entitled to judgment, whether that judgment shall bo for 
Tvalue of th'e goods wrongfuUy dealt with or onb' or 
his actual damage, which may be a nominal sum. Lnder 
"niitions^e have to go back to tUe oM orms ^id 
«« what the appropriate action would have Ken. I us 
Toil desirable state of the law (a), but while it exists .. 
must take account of it. 

said a 

II.— Trespass. 
Trespass may bo committed by various kinds of a.U 
of which the most obvious are entry on anoAers laid 
(trespass g««recto».«m /reff.'*). and taking another s good. 
trespass! lonis mportatis) (p). Notwithsunding t b^ 
respasses punishable in the king's court were said to V 
"r: Jand were supposed to be punishable . a ... 
of the kings peace, neither the use of forc^. -> th 
breaking of an enclosure or transgression of a M-blo 
Jul ry, nor oven an unlawful intention, is necc.»xy 
to constitute an actionable trespass. t - hko«..o m- 
Iterial, in strictness of law, .■hether there be any actual 

(o) Sec per Thesigop L- J-. * 
Ex. DiT. 199. 

(p) The exact parallel to tcoa- 
pos, de bonit aipartiiiit i» of 
couiao not trespass qu. d. fr. 

simply, but trespass aminnitins to 
a disseisin of the frcc-haia.-r or 
ouslet of the tenant fot yars or 
other interest not fpccliold. 


that if one walk, . . ^^'' ^'""'''^ "* "» ''oubt 

»uthontv vt^z:- ■'';"' """ "■'""'"' '-f- 

« licence (a. to which " ''^ "" °"*"'»' W- 

Oftenti Js «! ni: ::: '"T""^'^ -"J" •» '-plied, 
public to ...bstoin ivL ' "' "" "'''''•''^-d to tho 

open .„d o'::;:ai™:r:; cr ^""'"^ ^'-^^ -^ 

In such oases there Jms to^^T. "V,"'"""" "'^• 
the land or way, in conf . ,^ "'■''' ''"'"«' "> "«« 

«.! tha. ' bal :„ 1™ :'"^ '": ^-^ - - 

slenderest. I.oiterin. „T , f ^'""'^'" '^ "^ "'« 

the owner of the "soil ^' £ . ,'" P"''''7 f -""yin,. 

w. ' P'J'nS into his occupations there ('/^ m„ i 
trespass against that owner. "'"'<"« «^ may be a 

It has been doubted whether it i<, „ f., 
land without touching the ol L „ """ '" '"^' "'■'" *'""' 
or to cause a material' obi c at ,1 fi T; " ' ''^"''™' ^^'^ 
P»- over it. Lord EIloXluJ tho, Jt T " '""' •" " - 


SI. Tr. 1066. « Property "W 
"' «"»'"°"y in our book,, rcllv 
"""" P°™«'ion or a right to 

loudly of 

« As . matter of fact, tl,o 
Kart-noor h„-t had an e.^r^" 

licence from ll.o 

(•) Ihrrim, V. Biiie „f /,,,,. 

i 1 

f . 




incumbent on the close," and that the remedy would be by 
action on the case for any actual damage: though he had 
no difficulty in holding that a man is a trespasser who fires 
a gun on his own hind so that the shot fall on his 
neighbour's liiid (h). Fifty years lat/^r Lord Blackburn 
inclined to think differently (r), and his opinion seems Ih,- 
better. Clearly there can k a wrongful entry on land 
below the surface, as by mining, and in fact this kind of 
trespass is rather prominent in our modern books. It do.s 
not seem possible on the principles of the common law lo 
assign anv reason why an entry above the surface should 
not also be a trespass, unless indeed it con bo said ■ li.l tli. 
scope of possible trespass is limited by tliat of eacctn.' 
possession, which might bo the most reasonable rule (v . 
Clearly it would be a trespass to safl over another ma.i s 
land in a balloon (much more in a conti'ollablo aii--ship) ai 
a level within the height of ordinary buildings, and il 
i^;.'ht bo a nuisance to keep a balloon hovering ovor tlu' 
land even at a greater height. As regards shooliug, it 
wouUl bo strange if we could object to shots bcuig TircJ 
point-blank across our land only in the event of a,:tu.i.l 
injury being caused, and the passage of the foreign body 
in the uu- above our soil being thus a mere incident in a 
distinct tresp, « to person or property . But the projeetils 

overlooked when Lord Ellen- 
borough's dictum was ciled with 
approval in the High Court of 
Calcutta, Biigram v. Khellivurll, 
(1869-) 3 Ben. L. li. IS. W. 

(.,) The German (art. i«l5) anj 
Swim (art. eG7) Civil to.lo3 laio 
adopted a rule of this kind: it 
seems at least doubtful whether 
the range of cffeetivc poa«'!iio" 
can now be held to bo liioitcJ li.v 
thd possible height of liiiilJinm. 

(») Fickmns v. Itudd (1815) 
4 Camp. 219, 221, 16 H. R. 777. 
(J.-) Kemjon v. Hart (1865) 6 
B. k S. 219. 252, 34 L. J. M. C. 
87; and sec per Fry L. J. in 
Wamhuuith Somd of Worti v. 
r/nilfil TeUi>hm,c (/o. (1884) 13 
(J. B. Div. 904, 927, 53 ... i. 
(J. B. 449. It muy be otlior vise, 
as in that ease, whero statutory 
interosts in land ore conferred for 
special purposes. Lord Black- 
burn's opinion seems to hu^e been 



1"*: rtr:,", "i - -'- -*■• '■•' 

^posing „„ oxcoptio„„llv strict and u„,uuliii;,l dut, „f 
»fe cu^todv on ground, of pnbli. oxpodionov , ,, 
con„ex.o„ .0 ..„U aooord.n,,, „,tu..„ t'„ the ™bjV,. , ' 
Encroachment nndcr or above ground hv tl,,. , , , 

Trespass to good. ,nay be oo.n.nittod by tukin.. „„, 
sion of tbom, or by unv other act " ; v ,. ° "^ ?~P"» 

iniur.n.s- to the\.o;d ^ '' l'^ ''"''''*"'^- ^ 

-tcrest(.), as by kUling (<i., ^ ° T""'^' 

,., „ „. " ^ """"■"?-' l'^,, or chasinir;/' 

Sre Simoon E. ]lald„i„ 

»f tl,„ Airship," .i„„. .,„„^„^, 

JJH'). this „ mralionoj only as 
'" '''"'"™' Mmjilo „f ,vlmt will 
'"" '"• " '"HO "P-"ul lit..rnt„r,- 
'") Cliaptor XII. l,„ln,.. 

.'''/'"'"""' >•■ ">M 18951 
''■>■■' «4 L. J. Ch. 205 :„„ this 

pnint see per Lindlcy £. J. 

0. A 

[1894J 3 Ch. at 

K- «■ «8, 73 J,. J. K. )!. m 
■) very learnfil writer su™.,ts 
that :hiso„|,hlt„,,„„, t^!;'',^^, 
rule for straying: .attle also: Sal- 
mond. Law of Torts, ,,. ic, 
C") Blaekst. iii. J.53 
W «>,>/,/ V. ,»„„„,„, , 
^•'und. 88. 1 Wn„. .s„u„,l. m 
(trespass for iilliny „ „,„,f,;„ 

T ^r',' o"^"":' '• *■•■'■"' ""»») 3 
i* «/-;»;« fur 

pp. 11-- bpatiiiK- the plaintiff'.^ 

'lifft/;/ [tW()(J 2 



(/) A form of writ is gh 

■n for 



animaU, or defacing a work of art. Where the possessioa 

is ohanged the trespass is an aaporta'ion (from the old form 

of ploading, cepit et atportavit fc inanimate chattels. 

ahduxit for animals), and may amount to the offence of 

theft. Other trespasses to goods may bo criminal offences 

under the head of maUoious injury to property. The 

current but doubtful dooti-ine of the civil trespass bcinfr 

"merged in the felony" when the trespass is felonious 

has been considered in an earlier chapter (g). Authority. 

I 1)1) fco far as known to the present writer, does not eleuily 

llJ^J^r^ "*■ khow whether it is in strictness a trespass merely to lav 

'Ir Jt-ln--^ hands on another's chattel without cither dispossession [h) 

Ir actual damage. By the analogy of trespass to Luiil 

it seems that it should be so. There is no doubt that 

the least actual damage would be enough («). And casvs 

are conceivable in which the power of treating a mcro 

unauthorized touching as a trespass might be salutary 

and necessary, as where valuable objects are exhibited in 

places either public or open to a large cluss of persons. 

In the old precedents trespass to goods hardly occure 

except in conjunction with to land (fc). 

III.— Injuries to Beversion. 
Wron to ^ P«"°° '■> possession of property may do wrong by 
an owner refusing to deliver possession to a person entitled, or 

not in 


chasing the plaintiff's sheep with 
dogs, F. N. B. 90 L.; so for 
shearing the plaintiff's sheep, ib. 
87 O. 

(y) P. 205, above. 

(A) Sec Gaylard v. ilorrU 
(1849) 3 Es. 695, 18 L,. J. Ei. 

(») " Scratching the panel of a 

(») Scratching ine panei ui a ^n, 

/carriage would be a trc»pa.ia," Jiatti 

Aldcrson B. in Foulties v. U'il- 
towjhby (1841) 8 JI. i: W. ,)19, 
58 E. n. 810. In AiV/i v. 
Oregorij (1876) 1 Ex. D. 5j, the 
trespass complained of was almost 
nominal, but there wa^ a torn- 
plete asportation while the iiiter- 
meddting lasted. 

(i) See P. N. B. S(>-«8p 

by Otherwise assuming to deal with H,» 
or advorscl,- to the t^ue owlT o. b? 7T '' " "7" 
uador cover of his r«„I „ ^ "''"^ '""' '' 

his rights, or wh reT ^ ' """ •"" '"^ "^^^'^ "^ 

character, such aa rLt „f f T'7 T ""'' "^'^ "' 
burning wood .rindl! '^ ''^ "'^"'"^ »'"««• 

.«». '-"iohltsTo:: rr^rt"'"! ^"°'' ^"'° 

of assumed dominion ThT. "■°°"' '•'™™^ 

distinct concepti n^f tl mtl T'"' '"" '•"'""' 
W the person entitled Id he r""' "' """"^'^ 
'0 the prejudice of onein ""'/'^'''°» "' "'tering it 

pmvided its mos anoln/ T"" ""^ ""> "'""'™ '^^ 

and the parallel writ of'dTtlrc;:: .^IrL^''' ''1' 
a variation of the writ of d„I,r , u ^ ""'^^ 

si-lar in form to the wr t J thi'f 'Z '"""''''' 
must be added, in special butonlf ^ ^°'"''' '" ""'^ 
ca«», replevin („,).' F^lh "if r^"' ""'" ''"''°^*^' 
-^nded b, the Statute! f Miird". r '^ ^" 
was available as to land- later tM^ (-lou^-ster) 


(0 As to tho term "reversion, 
•ry mterest" applied to good., 
cp. Diccy on Parties, 345 I„ 
«• way "reversioner" would 
tamon, correct than "owner "or 

"•" '" «"" ■" not necessarily 
*";",'"• ''°'' t'" ""»"■««» of the 
ctatlel may be disqualMcd from 
» smug or prosecuting. 

(») It seems useless to »ov 
»»" of replevin here. The cu 
'•'" leader may consult JUcmi, 

■'■'2. For the earliest form of 
-nt. of entry see Close Tolls 
™l...p.32 Illaekstoneiswroi' 
m stafng ,t to have heen older 

«nd JIa,t,„nd Ills,. E„g. i.„„ 

"It- '1., 0. 4, § 2 „,/ ^,-„ 

('0 Under certain condition, 

»-to m,ght amo„„t to trespass, 
„,"• "• "' "«■ """e in sect. vii. 
"' the present ehuptcr. 


modern times the power «nd romcdim of courts of equit> 
huvo bc,.n found stiU u.or.. ollectual (o). Tho prooe«» of 
devisiDB a prootijal rcmwly for ownern of chattels was 
more circuitous: thoy were heli«d by an action on tlio 
case which became a distinct species under the name el 
trover, derived from the usual tliou^h not necessary foiu, 
of pleading, which alle^'cd that the defendant found t\v 
plaintiff's goods and eonvorted them to his own usei;r. 

iThe original notion of eonirmon in pers.mal 
answers eloselv to that of ««;(((• in tenemcnte; but ii 
was soon exterded so as to cover the whob ground ol 
detinue (q), and largely overlap tr«pas«; a mere trcsi^ass, ,■ 
whose *ts would have amwnted to conversion if done \n 
a Uiwful possessor not Ix^ing allowed to bike except.™ t„ 
the true owner ''waiving the trespass," and professing 1- 
assume in the defendant's favour that his possession had a 
lawful origin. 

IV.— Waste. 
WMt. Waste is anv unuuthorizcJ act of a tenant for a Ir,,!,,.! I 

estate not of inheritance, or for any lessi'r inl .rest, wlud. 

Co) For till' liistory anil old 
law, MO Co. Lilt. 53, 31 ; Waik.<t. 
ii. 281, iii. 225; note') to flfciiir 
V. Cole, 2 \Vm». Saund. 644; and 
Wi,„dUim! V. »'««■«<■ (1880) 5 
ll. D. D. 404.4HL. .!.«. 11. »0«- 
Tho action of waste proper could 
bo brought only "by him that 
hath tho immediate eatate of in- 
heritanre." Co. Litt. 53 a. 

(;,) Blackat. iii. 152, ef. the 
judgment of Martin B. in Biii- 
roufjhci V. /("!/lie (IMill) 5 H- »; 
N. 290, 2il L. J. K"- ISS- 
188, 120 H. R- 594. 597: 
and as to the forms of pleading, 
Bro. Ab. Accion sur lo Case. 103, 

109, 113, and '.w Littletun's r>- 
marlt in 33 H. VI.. 27, pi. K- 
an action of detinue where a linii- 
ing by the defendant was a!lf(."''i- 
that " this declaration jffr ""■(■;.- 
tioiiem is a new found llaliday : 
the rase is translated by Sir 1{. ^- 
Wright in roUoek and W riirht 
on Possession. 174. 

(5) Martin B., /. <'.. »!»";; 
phrase "in very uneieiit tinii'< 
is a little misleadinir, fur trover. 
as a Ecttlot cammun form, sctna 
to dalo on'y from the lIWi cen- 
tury; neeve. Hist. Kng. l.iw. "•• 



tends to the destiuLtim. ,>f >j, . 

consist in loss of ,i„.,.l„t ■'"'■'' ■"*'*' ""t 

evidence of title.. It is IJT, ' ^ '^'^'''^^ "°1«"'» ""' 
from one species to,nZl T'-^';™^™"'"" <>f 1""' 

-"-..«-.«.;::;:: -;t:r:rr' 

iveii boon sa d ,h„t l,„:ii- "usic , and it has 

" sam .hat buiMmjj a now i,„„«., i, «.a.sto Cr^ 
But modci-n authority doe. not k,^.. ,i ■ ""-'fC-;- 

«fciestrc^...ide„:t''^"'^::^"::,i:'" ''■•--- 

Kbothe.. the acts eo,np Jl d oJl, I """' ^" •"' 

'tlm.ff demised Cil V„ , ., ,, '"' "■'•'""' "'' t'"^' 

-.tural and reasonable ,vav of " „ , ' '"' ""^^ '" " "T^T^^^ 

l-.nd-,.|earin. .dd ToJ e ""''™""" ""^ ^^*^ 

England, or «:«„ ith, I v """"'''' "'""'' "' ^^"if^ 

~. repair :i:rf:rCorr°^-T°^ 

*orcfor if „„ express dutv TT ■ ' '' ''"''''' 

W". by the instru^nl^ ^ ,i ! T" *" ''"P"--'' "I"™ 


('VH the twuiiit build anew 
''"-'it id ,-a.te; and if ho 

rt- .'^•°- Li"- 53 a. C<„„„ 
"to tlo building, /)„„,, ,. 
■M««« (1617) Hob. 234 

(.) Jon,. V. ,7„^^„„ (igj 
L- 8. 2J 1,. 539, M0.O (j„^„, 

- ' !■• 253, 61 L. J. Ch. 449. 

■"""' fen/™.' n,„„„ 

t <an in no <-av(. |,e „,,.,to to 

f". [19nOJ 1 CI,. 624, 69 L. j' 

^''. 257, 

(«) Ite C,,il,cr„jht^ AvU y 
i"'""'" ("SO) 41 CI,. I,. 332 
58L^J.a,.59«. Thsco„e.t„e» 
of th,, decion i., disputed by 

W Journal, 533. .i„ e,,uitabl,. 
tenant f„r life U „„t ^u, j„,: 
Permian™ ,•„„„. p„„.^^ ^_ 



; I: 



: 1 

' ij-i ! 






for life. 


u.e u tonoin«!.t in an apparently rawonablo and piopor 
manner, " liaving regard to its choxacter ond tx> the 
purpo»cs for which i*. was intended to be used " (x), what- 
ever the actual consequcnoM of Buch user may bo. Wliciv 
o particukr eourse of user ha« been carried on lor „ 
considerable course of time, with the apparent knowkJ-r 
and assent of the owner of the inheritaneo, the Court will 
make all reasonable presumptions in favour of retorviii:,' 
acts so done to a lawful origin ((/) . Dostruetive waste bv a 
tenant at wiU may amount to trespass, in the strict sense, 
against the lessor. The reason will bo moro convcniwitlv 
explaiucd hereafter (i). 

In modern practice, questions of waste ariw cither 
between a tenant for life (a), and those in remainder, or 
between landlord and tenant In the former, th,. 
unauthorized cutting of timber is the most usual ground 
of complaint; in the latter, the forms of misuse or neglect 
are as various as the uses, agricultural, commercial, or 
manufocturing, for which the tenement may bo Irt and 
occupied. With regard to timber, it is to be observed tliiit 
there are "timber estates" on which wood is grown for 
the purpose of periodical cutting and sale, so that " cuttinsr 
the timber is the mode of cultivation " (6) . On such land 

Btagraee (1854) 4 D. M. G. 448; 
Se llolchkyt, h'reke v. Ctilmadi/ 
(1886) 32 Ch. D. 408, 55 L. J. 
Ch. 546. 

(a) Manchester Bonded Ware- 
home Co. V. Curr (1880) 5 C. P. 
D. 507, 512, 49 L. J. C. P. 809; 
foUowin(r Soner v. Billon (1878) 
7 Ch. D. 815, 821, 47 L. J. Ch. 
267; op. Job V. Pollon (1875) L- 
B. 20 Eq. 84, 44 L. J. Ch. 262. 
(«) Etiaa V. Sn<*itid(in Slate 
Qmrriet Co. (1879) 1 App. C». 

454, 465, 48 L. J. Ch. 811. 

(s) See below in sect. vii. (it 
this chapter. 

(n) In the United Slali-«, vthcre 
tenancy in dower is still ci.mmun, 
there are many modern ilocision 
on questions of waste arising out 
of such tenancies. S™ Scribni't 
on Dower (2nd ed. 1»»3> ■■ 2'2- 
214; ii. 795 aqij. 

(6) As to the general law con- 
cerning timber and its possibte 
variation by local custom, see ti" 


cutting tho timber ia equivalent t„ t u- 

laud, .„d if done i„T , '"^ " "<>P "t <itih\o 

Itenunt for life wLlttat: ™"" " ""' ^^"^^ ' 
.uch waste mav bo r,.l . . ™mnii88ion of 

o;.iv bo tao::rLf:fTro\r7„s^T^:^ 

tlio subject would nnf h,. ■ ' *^'"' ''''''"'' "" ti the :^tzt:x '^'^- "■^■'- '^"""^ 

of the tenants obli; 2 ' Z; hi™"""""'-'" ""^ '-^'^■■" -- 
covenants, to keep tho nrL . / '''P'''*' " '"P'i«l 

»' ropai... Yet "tlK w'onr i' ^"'^ '" '''^" -""i'-n 
wrong of waste is nono tho fc,. 


JriBmcnt of jMselM. !{.,/,„„,. 

E, 306, 309, « L. J. ck. 
M-, and Daihwood t. .Va„,„v,„ 
I '891] 3 Ch. 306, 60 L. J Ch 
809, C. A, 

W SCO i„i,,, V, S,.6,,y„ 
'»«) 13 Ch. D, 179, 49 L. J. 
^'l «o; but it aocma that a rc- 
"aMoman comiDg i„ timo 
™!d bo entitlod t„ tj,e ,„„„. 

™™ 1'''° <-■<"■■■' in ■"Oh cL: 
3 th. D. at p, 188. Tho Court 
*" I'"' «<- ilocWo what ia a,tuallv 
ornamental: tfeU-Bl,„„,,ll v 
''■"''■» ["03J 2 Ch. 664, 73 

L- J. Ch. 45. 

W Wasto of Ihi, ki„j „„, 
known aa.'o,,uit.o|o™„,„,;„' 
comnu^on of it b;, a ,„„„„', „„! 
n,poachable f„, wa,to not boil 
roatod a, „ro„^f„, „t ,„„^^ 
law; .00 „„„ 3„ ^ 3, ^.._^^ _^ 

(the Supremo Court of Juj;,^. 

'uro Aot, 1873), a. 25, ,,J"l 

W .B„J6 V. !>/„,,.,„„ (jsjj- 

onant , „,„ ,,^ _^^___j .__ e 

^prov.„^thaprop„r,y. Wanton 

differently treated. ' 

I I 

f !' 


.ommittcd (and •■iidor the oU pr«.-durP wa. nc Ush 
remediabW by the appropriato action ou tho m«) bccau* 
it i> «Uo a brooch of the tenant'. conUact (/) . Sinco th.^ 
Judicattre Act. it i. impoHsiblo to My whether an nctiou 
Moaing mi.u«> of the tenen. -nt by a lev* U brought on 
the contract or a. for a tortCjr): doubtk,. it would h. 
treated a. on action of contract if it become necoMory lo, 
any purpow to assign it to one or the other class. 



\ .--Concersvm. 

«,.»». CoBVorwu, according to i-ocent authority, nuiy l« 

Sio-ot dc.«!ribed n. the wrong done by "m unauthorized ..r. 
"»"^'° ,i)iicljjleprivca another of his property pcrinancnllv m 
*"^' loLAU mdflUaito time" (ft). Such an act n.ay or „mv 
not include a tre,,pass; whether it do« or not is 
■erial as regards the right of the phvintiff in a -uil 
action, for even under tlie <ld r-rnw he might -uinv. 
the trespass"; though as regard? the possibility ol tl." 
wrong-doer being criminally liable it may still be a vit.l 
question, trespass by taking and carrying away the s:„o.l. 
being a necessary element in the oflcnco of larony at 
common Liw. But the definition o£ theft (in the llr^' 
instance narrr~- but strictly consistent, ceni- 
plicatod by some judicial rofincmente, and by numerous 
unsystematic statutory additions) does not concern us hm. 
The "property" of wliich the pluntill is dopnvLil-tic 
subject-matter of the right which is«t W 

(/) 2 Wms. Saund. 616. 
(</) E.y. Tiickur y. /iiijT 
(1882) 21 Ch. D. 18, 51L. .I.Ch. 


(A) Bramwell B., adoptinfj the 
fxpresaion of Bo^.-\nqurt, (irff., 
JIiuiL.\..JitlU (1874) L. a. a 

Ex. 80, S9, 13 L. .1. I^. »'• 
AH, or nearly ail, tlie l^'iiriiin^ "" 
the aubjoct down lo 1871 U r"'" 
Icctcd (in a lomcwliat t'orrnl«< 
manner it must bo allowc.!) in 
the notes to Hi'lmiham v. "»"«. 
2 Wms. SiiuDd. 37. 

«>n,othi„K wind, ho Uu, th,- i,n,„„,i,.^ ,;„., ,^ 
only on th. conditio,, eoul.l o„„ .nainui." 1^X0^^ 
tro - undor tho old forn,,. Tl.u,, whore good, wTcT, 

removed the Jo^,! ".1 '*■'""'•'' "'''"■'^' '*'"' 


mil' hi""'""-",'" """"'"' '" '""-'''•«"' I— i™. 
m ght h,.,o a , action on tho ca,o, not boiL trovcT 
for any pcrmanont injnn- ,„ ti, i„t,,^t. Zl h^ 

of contract, a, against the i,„n,cdiate no,«.s«or 7-1 T 
-derthe Judicature Acts the^ofl'i,,;: 
.rover and a special action which i, not trover dno 
T' "'""r™' '^ >» - Sood reason why the IZ^ 
namo of conversion should not bo extended .0 covS 
these last-mentioned cases. 


-t-.y the natural meanin, of convert nip:.',; -""■ 
«nc» own use has long been left behind U cam to 
be. seen that the actual diversion of the bc.nW t L" in! 
from use and possession was on,, one ..^72 

W Lard V. Pr^ce (18741 L. 1! 
9 ii. 54, 43 L. J. Ei. 49. 

(t) Mean v, X. # «. ;f . jj. 
<■»■ (1862) II c. B. N. S. 850, 
1 L. J. C. P. 220. Tl,» appear, 
» have boon overlooked in the 
™«'-"g if not in (ho decision 
°' 'lie Court in Co„p6 C„ t 
f'MicS: [1891] 2 Q. J). 413^ gj 

../■"J-fl- 676, which assume, 
thai . bulor for i, t„^ j^^ ^^ 

remedy against a stranger who 
'njores the challol. The aulho- 
"ty of thai case is now doubtful 
see i„„aar,on v. tW;,V„ ri9l)4l 1 
K. B. 628, 73 X.. J. K.'j3. 3k, 

C. A. ' 

(0 See 2 Wms. Saund. 108 
and per Bramwcll I,. J 4 ]j, 

D. 194 (not for the hrs't time' 
«8 2 n. i- .V. 5,-)2, 115 It. R 
682 J. 



wrong, and not a constant one. It did not matter to the 
pkmtiff whether it was the defendant, or a third i«rson 
taking deUvery from the defendant, who used his goods, or 
whether they were used at aU; the essence of the injury 
was that the uso and possession were dealt with in a 
manner adverse to the plaintiff and inconsistent with his 
right of dominion. 

The grievance is the unauthorized assumption of ll.o 
powers of the true owner. ActuaUy dealing with aimth.r s 
goods as owner for however short a time, and howev.r 
liniited a purpose (m), is therefore co- version ,.o is au 
act which in fact enables a third person to deal «.tli 
them as owner, and which would make such dealing 
lawful only if done by the person really entitled to possess 
the goods (») . It makes no difference that such acts ^voro 
done under a mbtakcn but honest and even rea..onal.b> 
supposition of being lawfully entitled (m), or even w.tli 
the intention of benefiting the tru.e awner(«); nor is a 
Iservant, or other merely ministerial a^ent, excused ior 
,. ^*^ i„3suming the dominion of goods on his masters or 

V* •/'•^/%!principal's behalf, though ho "acted under an unavo.d- 
^^'/r^^able ignorance and for his master's benefit (o). It is 
l.4.t^ common learning that a refusal to deliver possess,™ to 
«^«4tl2C«W the true owner on demand is evidence of a conveisien, 

C^ ^--^ L.R.7II.I..757,4JI..J.Q.B. 
^nZcCu^ 169. Cashing a cheque m good 

(faith on a fraralolontly altirrd 

T'' iiudorsomcnt \t a i-oiiver3ioii as 

///V lagaiiMt the true indorece: Klanr 
' worl V. Comfiair d'Eicomple 

[1894] 2 Q- B. 157, 63 L. J- 
Q. B. 674. The »amo principle 
in' illustrated by Uniiiii Credit 
Bank v. Itenoj Bocki and llar- 
tcur Board [1899] 2 Q. B. 205. 
68 L. J. Q- B. 812. 

(») lliort V. Bolt (ISTI) L. R. 
9 Ex. 80, 43 L. J- Ex. SI. 

(o) Stejihem v. Elmill (1S15) 
4 M. 4 a. 259, 16 R. R. <J»: 
admitted to bo good la» ia 
HoUinl V. Folder, L. H. 7 II. L- 
at pp. 769, 793, and followia in 
Barker v. Flirloni^ [1891J -' '-''■ 
172, 60 L. J. Ch. 3ii8. Ip. 
Finn Art Society v. l'»."» *',* 
of London (1886) 17 Q- U- !"'■ 
705, 56 L. J. Q. B. 70. 


but evidence only(-j>). thof ; 

I bold a thir . .„d w I'l lot , '■ ""''• """"■"' "^"'O"'* '^ 

r -pud,- ,1.. I.:, .;l . ," 't"" " '° "" "^""^ " ""^' 

other el :, ,s. " I Zir^, "™ '"'""' " » »"- 

Plaintir» iii;„, ,, , ,''^ ™ '^^"''" ^ '" di-oga.-d ,.f the 

^i«>- fo. tho'def;„a:„;:rr:s™'"^'''':^''''^^ 

conversion " (,), But this inot h ^7"' " " " 
inference, and ^ay not h.\u , °"^^ PO'^'^le 

-. •» .-ii«r'a:r;:Sor r- "^^ -^'^-^^ 

«ay, "I am willing to do ri.r h i I f™'""'" "'^^■ 
I am doing ri^l.t li" 1 ^T ^"^ ^ """^^ "^ ^•"■" 

o "o»t, gue me reasonable nroof H„t , 
the true owner": and suM, „ "^ P"^* ""^t you are 

-utious in the amount of t f '*'''■ "^^ '^ '•^'=- 
H-dl, be said to repudia e"u:'r""' '" "^"--' -" 
0"- ^ -vant having U™ ^rr;'^ ^'^™ W- 
possession of his master a. baiL-t. th ' "" 

warehouseman having the kev of^l l"""" °* " 

-sonabl, „.d justilahly sa 'to thtVr'r"-"^^ 
'"' goods: "I cannot deliver thl.l' *"'^ding 
»*r"; and this i, „'"'""" ^'''''out my master's 
'^imljs ^laMst.a^wavs conT . "^ ""1'«'lifi'--d 


a«33, 9 iii„,. ,:,, ,„. 3,.';; 

'"""'" ■»=" detention of the 
^' before any demand sufflee 
•■■ ho.t further proof that the 
taldep aMumes dominion in dis- 
regard of the owner's title: Clav- 
'»" V. le Boy [1911] 2KB 

W'.WL.J. K.B.«,aA 
•here the plaintig-a aolioito'; 

''■nly tried to improve hi, case 
"J mak,„y„,„n„al demand after 
"« usuo of hii writ. 


„'^,'?°P'"'"°°f Blackburn J, in 
^'"'"" "■ ''»W,.r, L. B 7 H r 
"t p. 766. "• ^■ 

(r) See Siirrouahea v »». 
C1S60, 5 H. /'^/29a'^"''29 

«■ 5W, 597, s„pra p get 

>omon merely because the po,- 
e«eor^ r«sons for it arc bad! 

B B 

:■ I it" 


,qm«tWJi tlieu is whether it bo a reas«mblo one" (»; . 
Again, thero may bo a ,vrongful doling with i'^^, n.,. 
under an adverse ekim, but to avoid having anything to 
do with then, or with their owner. Where a disput. 
arises between the nmster of a ferryboat and a passeng^T. 
and the master refuses to eurry the passenger, and pul> 
his goods on shore, this may be a trespass, but it is not ol 
itself a conversion (*). This seems of little importan^ ... 
modern practice, but we shall see that it might still allec. 
the measure of damages. 

, In many eases the refusal to deliver on demand not onlv 
proves but eonstitutes the eonversion. When th,s .s .o. 
theStatuteof Limitation runs from thedateof thevolns.l, 
jwithout regard to any prior net of eonvors.on by a llnnl 

■person (m)- , ,. , 

Bv a conversion the true owner is, in eonU-'mphiUon ol 

law "tot ,Uy deprived of his goods; therefore, except m a 
few verr special cases (x), the mca.sure of damages in a,. 
action of trover was the full value of the goods, and hr a 
satisfied judgment (y) for the plaintiff the property in thr 
goods, if they still existed in -speck, was transferred to li«. 
Act. not The mere assertion of a pretended right to «ith 

^ounttog ^^ ^^ threatening to prevent tlio owner from doaliaj; 

to con* O yio"»fl\ I Pi 

(1821) S B. fc .U.l. 247, pw 
B«t J. at p. 2.-.0; 21 R. K. 348, 


(0 Fculdn V. H'm,m,hb,j 
(1841) 8 M. «: W. 540, 68 R. R. 
803; cp. Wilton v. McLnujUin 
(1871) 107 Mass. 687. 

(«) f fiHir V. J '" [1891] 1 
Q. B. 468, 80 L. J. Q. n. 404, 
C. A. 

(I) See per Bramwoll L. J., 3 
Q, B. D. 490', J'*"'' V- ^- * "• 

W. H. Co. (1879) 4 Kx. I)iv. 
188, 48 L. J. F-X: 5l.i, vtoro. 
liowevor, BramwGtl L. J. «;h tb 
only member of tlie Courr «li» 
wns ilcnr tliat tliore waa i'ny '■™- 
vorsiim at all. 

(■/) Not by judBmcnt uilhout 
ealUfaction; El pmlr I'"'" 
(1877) 5 Cb. Div. Sli6. If, L. J. 
Bk. 29; foUowinif Ih-'^ii-nar-nl v. 
lla,ruo« (1871) L. R- li l^'- ■"■ 
684, 40 L. J. C. P. 281. 


possesion can eomnnt the wron.-^ f """."''^y "' 
act of intoderonco Ifn, W o ! "T"'"" '^^ '•"■^■ 
I'^'lling short of a tof^l ■ '"'"'' P"''l'°^'' '""' 

'tl.ore being „o ddiv..,- i, „„f ' ^'.' "'' P«^»^'^»io.i. 

tiken in good faith it w V ™'"^'^'"""- « "ndor- 

'■•■"doroft;t,o/Wf ::"■'';"•'■;" ""> --'"^.V "f 

ioiive..,, both th.. .L(':;i° :"''"'■ "/•-""-'j -p h 

fa conversion. V„„,„ ^ ''"'' "'\^">''' ^'^ »« ^'uilf.v of 

f---o.i„, :::;:• ;r:,:r;:r-" T- 

«s willing to deliver it „„ '•"*''' '""P"' I'Tt, and 
proper consigns. (J) ''""'™' "'' '■'■"'"'''• '« ^l" 

A merely ministerial dealin<r wJfP i 

of an apparent owner hX fh 'T'""'" "^"™^ 
'appears not to bo eonver ::(J t^'^'f "' "'™i- 
'ne;, out the extent of this 



W SCO per Ilramwcll 1). a„d 
^'"y C. D., L. H. » Kv. 131, 
3-, «nd [,„■„„ c,,,/,, s„„k V. 

• • * .V «Vf, /fa„i. [Iggg, 

«'^Ji- 203, 21., 68 L. J, q.-'b. 
hire IVtjgt/nn Co. V. 

f;^-'''"''' (1801) 6 II. „ 
*"-■ =« L. J. Ex. 231. 


"■ .R- 6« (action l,y ,,„,■,„ 
"ga-nst .Witt- ,„ Jn^^^'Z 

'-.:« „„,,„, „ ^, ^^ . j,^^ "« 

68 H. n. 71)8. ^"• 

El. D.v. Hi, „ I, ., jj^^;, 





of appa- 







"'y (no.vt nolo). 

B B 2 

<«) 'itldd_^.fy,^y ^J„-, 

t) H 



i II 



limitation or exception is not prccisoly defined. Tlie 
point is handled in the opinion delivered to the Honse of 
Lords in Hollim v. Fowler (/) by Lord Blackburn, thou 
„ Justice ofthe Quoons Bench; an opinion which g.v.. 
in a relatively small compass a lucid and instructive view 
of the whole theory of the action of trover. It is thao 
_id that "on principle, one who deals wth goods al 
the rfoiiest of the person who has the actual custody 
"tiiem, in the bmd fide belief that the custodian li 
ihe true owner, or has the authority of tho true owner, 
should be excused tor what he does if the act .a of such 
a nature as would be excused if done by tho authority 
Of the person in possession (ff), if he was a finder of tl,. 
toods, or intrusted with their custody." This .«clu.l,.. 
from protectiou, and was intended to exclude, such u,t. 
as those of the defendants in tho case tlien at bar: tl..v 
had bought cotton, innocently and without negligence. 
from a holder who had obtained it by fraud, aad bad 
no title, and they had immediately resold it to a lirm 
for whom they habituaUy acted aa cotton brokers, not 
making any profit beyond a broker's commission. St.ll 
it appeared to the majority of the judges ,md to the 
House of Ijords that the transaction was not a purchase 
on account of a certain customer as principal, but a 
purchase with a mere expectation of that custom.r ,ov 
some otlier customer) taking the goods; the 
therefore eternised a real and effective though transitory 

C.B. 977, 21 L.J.C.P. 97; 87 
R. R. 3i3; but thU ia reaUy a 
cue of the class last mentioned, 
for the defendant received the 
goods on bclialf of thi trae 
owner, and wjs hold to have done 
nothing with them that ho might 
not properly do. 

(/) L. R. 7 H. L. at pi>.76B- 

(y) Observe that this means 
physical poascMlon; in some o' 
the cases proposed it would be 
aceompanied by legal possessioa, 
in ethers cot. 


dominion: „„d h,,i„^ ,^„^ ^ 
goods, they were liable to the true owner fAI S f. 

title, and by Ik "1 • '"I """'""'^ ""^ "PP"™' "'™""*^ 
form? A«v !f- "' '■'"'"■^- ^'""*?<^ ''« 

and (n , "'"'^'^ ^'"^ «-'>-^ conversion enough in fact 
»d m the comn,on «,„so of the word; but wa» t 

the authorities to Dr(ivf>nf ^^ f.. i, • "ocning m 

with <.ooH I t "^ •*'"» <^™"'able to deal 

with good, merely as the servant or a^„t of an «nna.v.nt 
owner ,n actual possession, or under a contract Xud 

neither the act done nor the contract (if any), puT,ortin. 
to nvolvo a transfer of the supposed property in t"^ ho could lawfully give if he wo,, really cntitLl " 
!..» apparent interest, and being obey«, in the honlt (1 

(*) See per Lord Cairns, L K 
'HL,,tp.7„ Thi, principle 
•Pplies to sale and delivery by on 
■uctioneer without notice of the 

•pparent owner's want of title- c;i si, ij" "■ 

<'»«rf Co. V. Curti, rmli I ^^ u^"^, "" "^ 
'" tl"»2] Iroasoaable " P It «eei 

1 Q. B. 495, 61 L. J. (J. B. 325. 
(0 Blackburn J., L. [{ j 
H. L. 764, 768. 
(*) See last note. 

honest and 
fleems not; n 

i I' 




if 1 r 

;il 4iilJi 



by baileei 


belief thut ho i8 m ontitlod. It might or miKht not 
bo convenient to lioU a peiBon excused who in gocul 
faith asBumes to dispose of goods as tlio servant and 
under the .mthority and for the bcaeHt of a pcrsei, 
apparently ontitlod to possession but not already in posse- 
sion. But this could not i» done without overruling 
accepted authorities (m) . 

.i. baike is prima fuc-ie estopped as belwwu himself 
,, and tlie bailor from disputing the bailor's title (n). .V 
person hoUling goods us a wuiehouseman or llio liko 
may bring himself under this rule by attornment, iind 
may be estopped, notwithstundinf,' manifest want of till-, 
as agaihst the person to whom he has attorned (o . 
Henc«, as he cannot bo liable to two adverse cLiimants at 
once, he is also justilied in redolivei'iug to tho bailor in 
pursuance of his employment, o J long as ho has not nolii > 
(or rather is not U) offectivo pressure) (p) of uuy 
paramount claim: it is only wiien ho is in danger of siuL 
a claim that he is not bound to reileliver to tho bailor {q . 

^erxuu duinK u niiniaterial act of 
^13 kind honestly but not reason- 
ably oiig:ht to he liahlR for ni^Ii- 
genoe to the extent of the uetual 
damage imputable to his negli- 
gence, not in trover for the full 
vahie of the goods; and even 
apart from the tei-hnieal effect of 
converaion, negligence would be 
the Bubatantial and rational 
ground of liability. Behaviour 
grossly inconsistent with the 
common prudence of an honest 
man might here, as elsewhere, be 
evidence of bad faith. 

(m) See Stcphem v. Elivatl 
1(1815) 4 M. S: S. 259, IS R. B. 
458; Barker v. Furlimij [1891 1 2 

Ch. 172, 6(1 L,. .1. Ch. 31i«, p. 3i«, 

(»•) 7 Hon. VII. 22. pi. 3. l»T 
Martin. (.'ommon learning in 
modern books. 

(o) llrtulcrai'u v. U't'i:";<t 
[1895J 1 U. II. 521. 1)1 1.. .1. 
Q. B. 308, C. -V. 

(I,) mdd!e v. Uuiut (181i.)i 'I 
li. J^ S. 225, 34 L. J. Q. II. 
137, where it is said tluit tliire 
must be something equivalent ta 
eviction by title parmamint. 

{,/) See Sheriilim v. .V, »■ «"".« 
Co. (1858) 4 U. B. X. S. HIS. 
28 L. J. C. P. 58, 114 li. U. S7:l 
(where note the diifcrciiL-e in ili« 
case of a common carrier); /."."- 


Fhon thoro nro r.oUv conflietinf, Mn,.. .1,,. ™„,rac, of 
b ilmcnt doe, not provent „ |,„i|,,. f,,„„ ,„ki i„j^,.. 
pleader procooclin,. (r). Tl.i. ca„o ,.vid,.„tlv falls wi.l,.;, 
'1.0 pnncplc eugo:o,t<.d by Lord Bl„e!:bu„,: !,u, ,|„. 
".lo. doped o„ tlu. sp,.id eh,„.„c...,. of,, b„il,..V ™,„r„,., 


Whore n baijeo has „„ i„t.,.o„t of his own i,. ,1„. 

,„ ;„ „, "■""'- "* '"" "»» 1" "H- goods Abi,M<,f 

■ OS in the. con,.no„ cases of hiring and pledge, a„d „„der !7''«l 
.obur of that interest d,.als with thogoo'ds in e.veoss ol' """■ 

ng t, quest,on,, of a„o,l,or ti„d arise. Any excess .hat- 
-r by the posses^r of his rights „„d..,. ,,« cootrac. 
Nuth the owner w:ill of cou.-se he „ breach of eontrael. 
-nd ,t aay h. a wrong. Bnt it will not he the wr,„„. 
"I eonvers.on unless the po^essor's d.viling is -wholly 
mcons.ste„t with the contract under which he had the 
l.m,ted .nterest," as if the hirer for e..a,„p,„ destroys o,- 
sells the goods (,). That is a eonvcrsion, for u is .lei.oed 
to be a repudiation of the contract, so that th,. owner who 
l.»s parted with possession for „ li,nited purple i, bv the 
wrongful act itself restored to the i„,„,cdiate ri-ht of 
l.ossessn,n. and becomes the effectual ''tree o^vner'' 
.•arable oi Mn„„ f„,. the goods or their value. But a 
«.J^tegul„r of power, as a siUaildge (t) oT 
" P'-™-iata£l.»'o(«), i^aat a eonversion; IH^t nL-t a 
wrong done to the r,.v,.rsionary i„,e,™t of „n owner out 

ft-riu aiul AmlmUiii Sofial Mail 
'■«■ V. !loi,f<l JI„il ,si,.„i,i p„i,lcrl 
e«- (1861) 31) L. J. C. 1>. 247, 
12« K. K. «8t; J,,,aj.l 3[."l{.' 
in iV irnrlp I)«,m (1881) 19 Ch 
Wv. SO, 90. 

!'■) llt^iji-rf, V. Lamhnt f]891] 
I « B. 318, 60 L. J. (J. Jj. 187 
Mlo»mjr Biddlc V. lloMl. note 

(") Blackburn J., L. H. 1 Q. fi. 

OH; <:■»»/„.,• V. «-,v/,„„„„ (ISJ5) 
1 (■■ J!. 672, H i. J. (- ,; 
219, 68 K. «. -98. It ,.„„ b„ . 
trespass only if thi- liailment i« at 

(0 il«iWi.v.^,„,A/,„^ (1806) 
L. B. 1 (i. D. 383, 35 -L.J a B 
232. ■ 

tx. Ch. L. R. 3 E:,. 299, ,»■ A 
P- 302, 37 I,. J. Kj. 174. 


of possession, and that owner must show that he is roally 
damnified (x). 

Tho technical distinction between an action of <ictinuo 
or trover and a HpeciaL action on the caao hero corresponds 
to the substantial and permanent difference between a 
wrongful not for which tlie defendant's rightful posseswion 
is merely tho opportunity, and a more or loss plausible 
abuse of the right itself. 

Tho case of a common law lien, which gives no power 
of disposal at all, is different; there tho holder's only 
right is to keep possession until his claim is satisfioi!. 
If he parts with possession, his right is gone, and his 
attempted disposal merely wrongful, and therefore ho is 
liable for the full value {tj). But a seller i-emainiii^ in 
[possession who resells before the buyer is in, default is 
(liable to the buyer only for the damage roally sustained, 
that is, the amount (if any) by which the market prico of 
the goods, at the time when tho K-Uer ought to liav*' 
delivered them, exceeds the contract price (2). The s'llfr 
cannot sue the buyer for the prioe of tho goods, and if 
the buyer could recover tho full value from tiie seller ho 
would get it without any consideration: the real substuico 

(«) In Johmon v. Stcar (1863) 
15 C. B. N. 8. 330, 33 L. J. 
C. P. 130, nominal damages were 
girea ; but it is doubtful whether, 
on the reasoning adopted by the 
majority of the Court, there 
should not have been judgment 
for the defendant: see 2 Wms. 
Snund. 114; Blackburn J., L. It. 
1 Q, B. 617; Bramwell L. J., 3 
Q. B. D. 400. 

(y) Muf liner y ^ Flor*>nce (1878) 
3 Q. B. Diy. 484, 47 L. J. Q. B. 
7C0, where an innkeeper sold u 
guest's goods. A atati^tory power 

of sale was given to innkci'pera 
very shortly after this dprision 
(41 & 42 Vict. e. 38), but tlio 
principle may atill be appliiable 
in other cases. 

(z) CAiiierff V. J'iaZi (IStiO; 
H. ii. N. 288, 29 L. J. Ek. 130, 
120 R. R. 53S. This ni!o can- 
not be applied in favour of a sub- 
vendor sued for conversiun by tlie 
ultimate purchaser, there being 
no privity between them; Juhti' 
aon V. Lane*, f Yorkxhirc H. Co. 
(1878) 3 C. P. D. 499. 


.obtained "W cTtl i "",, "7^ ''■'^'^■' '" -"""'>■ 

take account of 1 authrr: th" "LrT ; '" 

'he, atand, wo have to distinguish E^" ■'"' " 

(0 Ord.nary cases of conversion ,vh,.ro the full value 

Ciin be recovered- 
(ii) Co^es where there is a conversion but o^y the 

PtoUffVactual da„,.ge can be recovered 
(-) Ca^s where there is a conversion but Zy 
nonuM.d^a.«, can be rooovorcd; but such 

(«) "A man cannot by merely 
=k«ngi„g ,he f„™ „, „^,.^„ ___{ 

nUe hmaelf to recover damage, 
grater than the amount to which 
'• urn law entitled according to 
U"»l™ facts of the case and the 
'"•1 nature of ti.etran.aetion; " 
P« Cur. 5 II. 4 N. 295, 120 

«. K. .593. 

(4) t'cnn V. Jlilllclon (1S51) 

R- R. 593; where see the dis- 
tinctmns a< to treapaa, and lar- 
ceny carefully noted in the judg- 
ment delivered by Parke D 
W L. E. 1 Q. B. at p.'au 





nion by 

caaoe arc anoinalouB, and depend on the auli- 
ntnntinl cause ot action being tlio breach iil' 
u contract between the parties ; it sooiih 
doubtful whctlier they ought ever to have bon 
admitt*'d {d): 
(iv) ra»c8 where there is ouLii coiHw r « inn , but an 
actio n fl'ornierlv a eix'cini or innominate actiiiii 
on tlie case) lies to mcaux thcactuitl damiige 

A man may be liable by e6toi)|X'l as for the conversion 
;of goods whieii hi; bus represe-nted to bo in his posse^ssimi 
lor control, although in fiict they were not so at any tim ■ 
\vlien the pliintilV wiis entitled to possession (c). Am! i\" 
may be liable for convcTHion by refusal to deliver, wlieii 
ho has had possession and has wrongfully di'livercil lli^ 
goods to a person having no title, lie cannot deliver io 
the person entitled when the domond is made, but, havi]ij 
disabled himself by his own wrong, he is in tlia saiii> 
position us if he still Imd the goods and ri'fus'J in 
deliver (/,. Conversely, a jihiinlift' may b<> estopped liv 
conduct which aiuounts at any rate to an api)ai;iit 
authority to deal with the goods in the maimer cum- 
plained of (r/). 

(ft) Ou *hc ([uc-ition whetlipr 
full or only noiiiinul clumugi'a run 
liG recovered for eonversion of a 
doeumont wliieh i. not nejrotiaWc, 
but only evidence of a debt, flee 
Bitvint, jr. *f Siine v. L. ,f S. W. 
Bank flMOJ 1 (J. IS. 270, 611 
L. J. Q. B. 164. C. A., when) 
the plaintiffs wore held entitled 
to recover in full on other 

(e) SeiiuLJU..l^ne (1887) 19 
Q. B. Div. 68, 56 L. J. Q. B. 

(/) Brittol ami IV. ot f:i,yl««,l 
Bank v. Mulliiiid II. ('». |1S!I1 I '-' 
(J. B. 653,61 L. J. (J. 1!. Hi, li.) 
L. T. 234, C. A. 

(j) Vniott I'n-itH Jhiif. \. 
Mi'nt'J Dnrkn awl Uafhoi'r 
Boanl [1899J 2 Q. U. 203. 6» 
L. J. Q. B. 842. Aa to wliat 
will and will not amount to cuiii 
authority, see Ftir/ialmr^'^u l!i'<ii. 
*■ (V. V. Klii'jiVa. [191121 A. f. 
325, 71 L. J. K. n. 6(17. 



will not lie. I,v tl„. ,.n , ' """ "''"P"-'* '™""" ' 

*n. uv iiu> onn nffmnDf ♦ ,.. „*i ,. . ' <oiiinifni 

"vili not lie. I.V tlu. ■"'■"■.""'■, '"""»■' "^ "'a' "t.vspu.., 

E^-i— ,;::!::,;— :-=^? 

P ; such that tho working out of it is the natural 

I*) Lord H.therloj., 7„„„4, v. 

"'wri am) L. K. 5 jr i 
«*. "2, « L. J. ,■. P. ni 

(') Lilt. s. 323. 
(*) if«rroy V. Jtall (I849. ^ 
"^■BMI.ISL.... c. P. I6I.7S 


«■ H- 708, „„<! iii„(,|,„. ,_ ,, 
B- 103. Co. Litt. 200. 



>nd neocMory couno of uw and enjoyment, in which case 
the working i> treated a* rightfully undertaken for the 
benefit of all entitled, and there is no queation of trcspas- 
to property, but only, if dispute orisea, of accounting lor 
tho proocods (m) . 

The normal rights of oo-owners as to possession and ii» 
may bo modilled by contract. One of them may tliib 
have the exclusive right to possess the chattel, and tli- 
other may have temporary possession or custody, as hi> 
baileo or servant, without the power of conferring onv 
possessory right on a third person oven oa to his own 
£t tJUt shure. In .\!/b^g_y..Mmdelaar(n) A. had sold a half 

AtA-<»Mf j'l^^'^^nre of a valuable chattel to B., on tho terms that A 
should 1 otain possession until the chattel (a gold cii;imrl 
box) could be sold for their common benefit. Afteiwanls 
A. let B. have tho box to tako it to an auction room 
Then B., thus having manual possession of tho box. 
delivered it to Z . by way of pledge for a debt of his own 
The Court of Appeal hold that Z. had no defence in an 
action by .V. Tho judgments proceed on tho assumption 
that B., while remaining owner in common as to halt the 
property, had acquired possession only as baileo for a 
special purpose, and his wrongful dealing with it deter- 
mined the bailment, and re-vostcd A.'s right to immnliato 
possession (o) . 

(m) Job V. PMoa C187S) L. 
B. 20 Eq. 84, <« L. J. Ch. 262. 

(») [1892] 2 Q. B. 202, 61 
L. J. Q. B. 709, C. A. 

(o) Cp. Feitn v. BittlctUn 
(18S1) 7 Ei. 1S2, p. 377, above, 
and similar cases cited in text. 

Qu. wlietljLT, on tlie facts, U. wiu 
even a baileo, or wad nut rutlicr 
in the position of a servant Iiavin^ 
bare custody. The oitiim would 
have been detinue or trover undiT 
the old practice, and was so 
treated by the Court. 



iHTBon who liii« lo„„i „ ■ "Mfiunst anv 

origin or l™/":?"™' *'"'"'"■ "S""^") i- i^ 

to 8uy that one ui "^"^•"'^""S^r ,^,„ot Ik, l«„rd 

.".i«^ti„/.;i,,,^' x:::':!^"'~ ''''-■■ 

tl't the h ,d™ is „ ' "". " ''"■""' /*- -'J^oo 
'.f tho contran- doc.r„„t ''^''' P°™'^»-'>''. ""tl thou. 

pcssc^ion foiiL'"';::; s inthTt" '--"^ 

'^■nding ckim of a third nartv1^„.7r ' "^ "'"- 

™-t ho set up to JlrZl'l^: " " '""^'^ 
■».ai„st a , posse. .rr "r""'"" ^ 

m " ^ ^^"'P— «^-' a w4 doe,,, ..7 
«8 the Boman maxim runs, "adversus evfr ■ • 

possessio prodesae solot " (p) Ast^" d, 7 '""'^'' 
ip; • AS regards real property, a 

(.P) Onham V. Pmt (ISOll 1 
E»t 2«, 246, 6 R. R. 268- 
^.^™. V. C. W. Jl. Co. (1856, 
' E. i B. 802, 25 L. J 
«■ B. 107, 103 n. R. 753 ■, , Fo,l,ro.l:e (1865) 
'8 0. B. .V. s. 515, 34 L. J. 
^- e. 164; extending the prin- 
ciple of Armor,/ •• ..... 
IM22) I str 

501 [305], uwl in 1 [ijoi] 

?,%^- ,•=••»■ ■'1,3, dope. 53, 
''■ '^»°1'" Sent. Km. v. u « 2- 
'"fflut nd proUtioncm .i „„ 
coi-poraliter tencom." Thoruloi, 
now troated „ sctUod i„ the 
C. A., see Tio ,,'Mfleli [1902] 
1- «, 54, 55, 71 L. J. P. 21^ 
«nd the Judicial C^^itteo:' 
aiemcood Lumber Co. v. /•/„7;;„ 
A. 0. 105, 73 L. J. p. c. 




poBBCSsion commencing by tiespmB can be (kfonded against 
a stranger not only by the first wrongful occupier, but by 
those claiming through him: in fact it is a good root 
of title iis against every one except the person rcallj 
entitled (g); and ultimately, by the operation of the 
Statutes of Limitation, it may become so as against him 


The authorities do not clearly decide, buteeem to implv. 
that it would make no difference if tho de facto posseesiou 
violated by tho defendant were not only without titli', 
but obviously wrongful. But tho rule is in aid of de. fiHo 
possession only. It will not help a claimajit who li:is 
been in possession but has been dispossessed in a lawful 
manner and has not any right to possess (r), nor one «i... 
has never had possession (s) . 

„ This rule in favour of possessors is fundamental in both 
civil and criminal jurisdiction. It is indifferent for most 
practical purposes whether we deem the reason of the la« 
to be that the existing possession is pri'md /acie evi Jciur ol 
ownership or of the right to possess— "the.cres.iWiP''''" 
of.Iaw ia that the person who has.. possession has tin. 
property" (():— or tliat, for the sake of public peac- :md 

62. And such use and enjoyment 
aa the nature of the subjuct- 
matter ailraita of is ffood evi- 
denee of possession. See Harper 
V. Chtirhmcortli (,1825) 4 B. S: 
C. 5V4, 28 R. R. 405, and other 
authorities eollcctcd in rolloolt 
and Wright on Possession, 31— 

(?) -Uher V. IVhillock (1865) 
L. tt. 1 a. B. I, 33 L. J. Q. B. 
17, approved in Fernj v. CliatoU 
[1907] A. C. 73, J. C; cp. Cults 
V. Spring (1818) 15 llass. 135, 
and Bigelow L. C. 341; Roien- 

hcrg V. Vook (1881) 8 t). U. Wv. 
62,51 L. J. Q. B. 170; IwHuits. 
rUzgernld flSST] 2 CI.. S6, 90. 
66 L. J. Ch. 604, per l.injky 
h. i.\ and see further I'olluck 
and Wright, op. cii. 95-99, and 
as to land notoi in Radcliffo and 
MiloJ, Casoa on Torts, at pp. 282, 

(f) Bucklei^ \^.iirmK (18ti3) 3 
B. 5; S. 506, 32 L. J. (i. B. 129. 
129 K. R. 457. 

(8) Letike v. Loveda'j (lti42) 
4 Man. 5: Gr. 972, 61 R. R. 7»I- 

(() Lord Campbell C. J. in 




"11 ™o„ wi,„ cannot ,„„t,. „„, T^ , l.^^"' »=--; 
'1-t tl." law protects possesion IW , c 2 'f, ™^ ^"^ 

.nay bo gnid™ and .L in tl.o Wo 1 , " ™!'™^ 

immediate ri§:ht to possess when ..„, . i : = "'^ "" a.titl«l t„ 
legal possession--™! ZtjZ''^/'"""'.^^ 
Pkading invested with the benefit osti "''™ 
-odios; that is, „„ „w„er who iiad 2 '^T'"" 

■''^"" '•• o- W. It. Co 
;!«») 5 E. «: B. at p. 806; 
^» L J. y. I!. 107, 103 
«■ K- 755; but thU doM not 
«»m M,i,le„t with tlio prot™- 
tim of oven a manileitly wrong- 
'ul ponsessor against a now 
Klraneous wrongdoer. In Honan 
" a (hief ha, the interdieta 
'taagh not the »«,■„ /,„(,-, ^,,1,^ 
7°™ « l»"'"l interest in the 
Pl'intiS; in the eommon law it 
'»»■ that ho can maintain 

(«)Lord Demnan C. J. in 

fZ" "■ ^''"••'" f'S") 13 M. 
'' "■ a' p. 681, 87 H. B. U 

Tills IS proeisely Savlgny's 
thonry, „),io|, however is not now 

generally aecepted by students of 
Boman law. I„ ,„„„ ,„p^„, .^ 

Bts the romraon law better. Mr 

Jl..tio..II„ln,e, in "The Common 
Law take, „ ,;,„ ^^.,,^_,^,^ 

("■'.-r., but distinct (the law 

takos the in.,tinct of mankind for 

reustmg intrusion as it is, and 

'"" '" -""'fy it in an orderly 
manner). ^ 

(■■) With Jhering (Orund des 
Besit2c=8chutzra, 2nd ed. 1869) 
<^P- t!io same aulhor's " Der Bo- 
Sltzwillc," 1889. 

(.1) Bro. Ab. Trospn,, pi. 13, _. 

I i' :! 


where the bailment is revocable at will, or on a condition 
that can be eatisfied at wiU; which last case includes 
that of a trustee of chattels remaining in the control and 
enjoyment of the cestui que trust, for the relation is that 
of bailment at will as regards the legal interest {y). In 
this way the same act may be a trespass both against tho 
actual possessor and against the person entitled to resume 
possession. "He who has the property may have a 
Iwrit of trespass, and he who has the custody another 
jwrit of trespass" (z). "If I let my land at will, and 
•fi stranger enters and digs in the land, the tenant may 
ibring trespass for his loss, and I may bring trespass 
jfor the loss and destruction of my land" (a). And a 
lessor or bailor at will might have an action of trespass 
vi et armis against the lessee or bailee himself where 
the latter had abused the subject-matter in a manner 
so inconsistent ivith his contract as to amount to a 
determination of the letting or bailment. "If tenant 
at will commit voluntary waste, as in pulling down of 
houses, or in feUing of trees, it is said that the lessor 
shall have an action of trespass for this against the losso. 
As if I lend to one my sheep to tatho his land or my 
oxen to plow the land, and he killeth my cattle, I 
may wcU have an action of trespass against him notwith- 
standing the lending " (fc). 

An exclusive right of appropriating things in uliicli 

19 Hm. VI. 45, pi. 94, where it 
id pointed out that the tres- 
pusBer'ii act is one, but the causes 
of action are " diversis reapec- 
tibus," as where a servant is 
beaten and the master has an 
action for loss of service. 

(y) Seo Barker v. Furlong 
[1891] 2 Ch. 172, 60 L. J. Ch. 

(=) 48 Bdw. III. 20, pi. 8. 

(o) See note (i), p. 383. 

(4) Litl. 8. 71. If any iluuH 
be implied in Littlcton'a " it ■» 
said," Coke's commentary re- 
moves it. Such an act "con- 
cerneth so much the freehold and 
inheritance, as it doth amuunt in 
law to a determination of las 


B in respect of romodios ,., actual possession (c). 

ao .....V,w po«..,„,:i r o:ri:-;r. 

puT>ose, s„ that the baiW h,. po.c,.io„ and is en" S 
to possess, not in his original ri-^ht I„- i„ u , 
right derive,! from his 0,™ ba ,e^'S S T "^'''""'' 

Troublesome questions wore raised under the old 1 „ 
by the position of ,. ,,„..„ i. , . °^^ '"•''' P""*""™ 

o«, wn, posLsor:eXi^,:z:fr^r "^^""- 

W. W 8. li. 432, Ex Ch T'rt""' " «' «• ^M. 

* B- i Ad. 6U. 

r. — T. 

■ f m 

: f 


at common law. Similarly where a boiloo wrongfully 
delivers the goods over to a stranger; though the bailee s 
mere assent -will not prevent a wrongful taking by tlin 
stranger from being a trespass (/). 

The old law of real property was oven more favourablo 
to persons claiming through a disseisor; but it would l.o 
useless to give details here. At the present day the old 
forms of action are almost everywhere abolished; and it 
is quite certain that the possessor under a wrongful title, 
even if he is himself acting in good faith, is by tlie 
common law liable in some form to the true owner {g], 
and in the case of goods must submit to recapture if tlio 
owner can and will retake them (A). In the theoretirilly 
possible case of a scries of changes of poesession by inde- 
pendent trespasses, it would seem tliat every successive 
wrong-doer is a trespasser only as a4,'ain8t his iminediate 
predecessor, whose (fe/ae<0 possession he disturbed: tlioudt 
as regards land exceptions to this principle, the extent of 
which is not free from doubt, were introduced by the 
doctrine of i" entry by reUtion" and the practice .« ti> 
recovery of mesne profits. But this too is now, as regards 
civil liability, a matter of mere curiosity (») . 

But jfobably that case goci too 
far in allowing rreaptiiro by 
force, except perhaps on fresh 
purauit: see p. 399, below. 

(i) The common law might 
conceivably have held that there 
was a hind of privity of wrongful 
estate between an original tres- 
passer and persons claiming 
through him, and timi aiiplicd 
the doctrine of rontinuing tres- 
pass to such persons; and this 
would perhaps have been the 
more logical course. But the 
natural dislike of the judgce to 

(/) 27 Hen. VII. 39, pi. 49; 
cp. 16 Hen. VII. 2, pi. 7; 
.lf«»»i« V. Blakt (1856) 6 E. Jc 
B. 842, 25 L. J. Q- B. 399, 106 
R. R. 822. 

(y) 12Bdw. IV. 13, pi. 9; but 
thb waa probably an innovation 
at the time, for Brian dissented. 
The action appears to have been 
on the case for spoiling the goods. 

(A) See Bladtt v. /iij?" (1866) 
11 H. L. C. 621, 34 L. J. C. P. 
286, where this was assumed 
without discussion, only the qnes- 
tion at property being argued. 



VUI.~Wro„g, to Ecen^nU. etc 

the, have bee. ir^Jo^Zlx^lf^^^^'l ""^" ^ "-T" 
"n exact sense of being 'J^ ^*'' ''™.'"" "'P^W^ in ^i^^^ 
".ay in time ripen into 1? ^''""'J''y'°"°' which 
-1 gives no p'osscs^, wrrr' ", ■"" ^"---"- 

l""« oannot sue even a stra^ T^ " ^""^ '^'">out 
The cm, poesessiol tL r:„J". ^'^^^^^ ''"W- 
possession of the dominant ten "" "^''""■'"' " ">» 

jncident. Keverthoir^^;!:'^" "'^^"=-" '^ 
'■ke. as completely existing rLhrof I T"'' '"' *'«' 
IS a wrong i„ tho nature of 7r "^"^ ™joyment, 

by action without any le , '"^' "^^ ^'''"^diable 
f-a«eKV ,H, ,,:;„^ 2^y » proof of specific 
forms of pleading, s.'nce trl "^ ""'''•'^ '''^ °ld 

«<"<>. though the'aet of 2rrr"'*'"'''^'^-'-P- 

Bulliplybg capital £ofc„;„ 
'"«.« between tresp.*, ™°a 

'"«. beuw logics. FortheC 


l^- B- i B. 819, 29 L. J. Q. B 

""ents, 1876 ^^ 

(-") 1 Wm,. s.„d. 626- 

2 '• 





Of the righte th.>m,elvos (»). and tl.i, doo« not enter into 
our plan save so far as such u.a.ters con.c undor th^ hoa,. 
of Nuisance, to which a separate chapter is Riven. 

Franchises and incorporeal rights of the hke nature. - 
patent and copyrights, present something ^"^^^ 
possession, for Ihek essence- is exolusiveness; nd .ndc <l 
Lespass was the proper ren.edy for the ^-t~; ,:, 
rtriotlv exclusive right . ' ' Trespass he. for break ng n 
e2ingaseveralfishery,thoug.,nofisharetnken. An 

so it has ahvays h<.n held of a fr.v warren (o). B^. 
suu,o ren,ark applies; in almost every disputed case .h, 
question is of deiining the right itself, or the conditions t 
the right (p); and de ftuto enjoyment does not c,e„ ,>.o- 
lilndly create any sul>sUuitive right, hut is ma.enal 
only as an incident in the proof of title. 

l\.^Gwiind,< of Jmtificalion and Ejcrim. 
Acts of interference with land or goods may be justilied 
ky the consent of the occupier or owner: or they len 

r,0 Thus IlopMiu V. O. y. B- 
Fo. (1877) 2 Q. B. Div. 224, 46 
L J. Q. B. 265, .^ots bounds to 
the exclusive right eonfcrrcd by 
the franchise of u ferry, and 
Ballon V. A,,;,,,. (1881) 6 App. 
Ca 740, 50 L. J. Q- ». 689, 
di.<eu..c» with the utmost fulne.. 
the nature and extent of the right 
to lateral support for buildings. 
Both decisions were given, in 
form, on a claim for damages 
from alleged wrongful «■*'• Y"* 
it is clear that a work on Torts 
is not the place to consider the 
many and diverse opinions ex- 
pressed in Baltn,, v. Am"', <" <" 
deflne the franchise of a ferry 
or market, .^gai", "-e later case 

of Atloinefdeneral v. 
(1885) 11 App. Ca. 66, 55 1...1. 
Q. B. 193, interprets the pranf 
of a marliet in live jiurta im,l«m 
loco, on an information allci'ini: 
encroachment on public ways by 
the lessee of the market, ami 
claiming an injunction. 

(o) 7;o//orrf V. K'"'"-!', ««■ "'' 
(1848-9) 13 Q. B. 426, 18 I.. J- 
Q. B. 109, 78 B. n. 432. Cp- 
Fttznemld V. Firbaiil: 1189'J ^ 
Ch. 96, 66 L. J. Ch. 529, C, \. 
See the authorities collected la 
argument in 7W/o'-''v. .»»*.» in 
tho Court below, 8 «. »■ »' 
p. 1010. 

(p) See note (»), alx""- 

licj;nce and interest. 

fact iuseparublo fr„,„ it ''™'*''*'^ «« to 1* in without licnoo had been unlTf u, iT/' r"""^ 
to hunt in u mair« ,,,,..1 j "I'ImiuI. But a liwnce 

-hiaownnrrrar rrr'-^-^'^ed 

-d to ea„, it a,va,. the nn^uTZr^'oTi' '""'"■ 
».o lioeno^a a. to the acta of h«n in! ] r""" '""■ 
•he tree, but as to tho ^ '""^ ™"'"= ''°»'' 

■•na tree cut -C tl^i r^I:!;; ^ '^^^^ ''^"^ 
«" eat n,y, or to fire ZToJ 7" '^ '""^ 

^arm hi,n by ■ as to tl,„ «! \, '" "'^' '^"^''"y «> 

a-.dwarn,i„gr„rt;tT 'r-"™^"'^"'-' 
^.. the n>eitrt;:::rr:::j.~c "^''-^ 

h^ by consequent and not di^tlv , "" '" ™"" 

Gwerallj. speaking, a lieon«. 

(« Va„i,h.„ c. J., 7, '^'■■°- 

Homer L. J. i„ ,■,„„* «•„,,. * 
To. V i. f, c. ,,„„4j , jj J 
»' P- 721, 73 L. J. K. B. 368. 








«onwh«. «» ,»«.gf»l, oome. to »a end by aay .traJ»£ar- ot th» 
"lE"^ EIOBfirty with respect to which the Uoenoe « given (r), 
iTis revoked by .ignifying to the Ucensee that it is no 
longer the liuensot's will to aUow the acts permitted bv 
the licence. The revocation of a lioflnoe i» in it«l£ n« 
less effectual though it may be a breach of contr«>t. If 
the owner of knd or a building admits people thereto 
on payment, as spectators of an entertainment or the liko, 
it may be a breach of contract to require a person who 
has dulv paid his money and entered to go out, but ., 
person so required has no title to stay, and if he persist, 
in staying he is a trespasser. His only right is to sue 
on the contract (»), as he clearly may do where a oontruct 
existo (t) : when, indeed, he may get an injunction, and s„ 
be indirectly restored to the enjcrment of the licence (,, 
But if « licence is part of a transaction whereby a lawful 
interest in some property, tesides that which is the 
diate subject of the licen«>. is conferred on the h^nseo 
and the licence is necessary to his enjoyment o£ that 
interest, the licence is said to be "coupled with an 
interest" and cannot be revoked until its purpose » 
fulfilled: nay more, where the grant obviously canno 
be enjoyed without an incidental lioenoe, the law will 

(r) Wallit V. llarriKin (1838) 
4 M. t W. 638, 8 L. J. Ex. 44, 
SI B. E. 715. 

(,) Wood T. LmdbUter (1846) 
IS M. S: W. 838, 14 L. J. Ex. 
161, 67 E. K. 831; Bydt ». 
Otaham (1862) 1 H. S C. 593, 
82 I.. J. Ex. 27. A contrnct to 
carry paasengers does not consti- 
tute or include a Uoenco so as to 
let in this doctrine, though part 
or the whole of the journey may 
be on land belonging to the raU- 
way company or oUier carrier ; 
Butler y. M. S. i L. B. Co, 

(1888) 21 Q. B. Div. 207, 57 
L. J. Q. B. 564. The reason is 
perhaps open to criticism: see 
L. Q. B. V. 98. 

(i) Ktirriaou v. Smilh [1897] 
2 Q. B. 445, 66 L. J. Q- B. 762, 
decided whoUy on common U» 

(u) See Froglay "■ ■''"''' "' 
Lovelace (1869) Joh. 333, 123 
E. E. 147, where however Uie 
agreement was treated as an 
agreement to execute a legal 


«nnoi tho neccary lioen„e ^ the „ant " A ^ 

th^t puxposo ha« elapsed (,). The diversity to LnoM 

of bea«b,^ere put in; the defendant said thi, "2 hi 
l;»nee of the plaintiff; to whieh the puLTff sITtS 

of theV 'T\«"-J«""- ''^t^nvards Chief Jastic; 
.nd a rea«.nahle ti.e to quit o. remove his ,XT " 


W I^SSdy^Msmii'" (1845) 
1« M. 4 Hr. 838, 844, U L. J 
«■ 161, 67 B. R. 831, 836- 




W 39 Hen. VI. 7, pi. 12. 

(") CornUh V. 5(»44, (1870) 
I- B. 5 C. P. 334, 39 L. J. c. P 
202; Mellor v. WaHi„, ng,-, 
L. K. 9 Q. B. 400. 

:i ! i ii 


Eucntod , Again, il tlio ttrts liivnBod bo such as have permanent 
''°"°"' |i08ults, us in altorinn the condition of land U-lonRing to 
the Uconsce in n manner which, but for tho licoun-, would 
:be a nuisance to adjacent land of tho licensor; there llu 
jliccnsor oiinnot. by merely revokiuK tho licence, lUSt uiwii 
Uho licensee tho burden of r.«torinfr tho fornxr stnt of 
khings. A licence is in its nature revocable. (6), but tlif 
revocation will not make it u trenpass to leave thinpi s 
tho execution of tho licence Iviis made them. In ih' 
•ense it is said that " a licence executed is not oounlti- 
mandabla " (o) . When a licence to do a particular IhiuL- 
once for all has been executed, there is nothinp: left li. 
revoke. Whether and how for the lirensor can get rid 
of tho con8equenc<« if ho niislikes them atterwurdH i> 
another and distinct inquiry, which can be dealt with only 
by considering what those conseiiuences are. He may 
doubtUsss got rid of them at his own charges if he 
lawfully can: but he cannot call on the license;' to (iikf 
any active steeps unless under somi' right expr(-<sly ciTiitcd 
or reserved. 

For this purpose, therefore, there is a material dilli-a'iiL' 
between "a licence to do acts which consist in repetition. 
as to wolk in a park, to use a carriage-way, to lish in ihc 
waters of another, or the like," which may b' (ouiitre- 
manded without putting the licensee in any worse jKisitioii 
than before the liceni.' was granted, and " a liceun' to 
construct a work which is attended with expen»<- to tlip 
party using the licence, so that, after the siinie is ccnuilfi- 
mandcd, the party to whom it wu.>. granted nuiy -ustain 
a heavy lo88"(d). And this rule is as bindiiiii »ri :i 

(6) Woorf V. LcadlUter. 
(»), last pafto. 

((,) Winter v. Bmckwell 
(1807) 8 East, 3M, » B. »• <M. 

TIiw clusa of L'lisps i" cxprcs^tij- 
rccognizod anil distinpuislirf m 
Wood V. Lendbltter. 13 M. k W. 
at p. 855, 67 R. B. 815. 

(d) Liggini v. luge (.1531) ' 


Iicen«)r-» ,ue«„o« i„ till.. ^ „„ him»clf r,o n . ■. ■ 
of crentiiig i„ or ovor land „f"n. ^ ' '""'''" 

In ti. "^ , ^'"*f """'•'^ only '>v <i<wi r n 

In those CI18CS, howovpr the ll™»,= • ^'"^^ 

without rcn,..dv, for the L T " ""' '«^'»»«".v 

on him an inter .tUh T' ^ ""'' "• '" *™f"- 

lordship ..„u«.d hy „ntin,I .. . ""*' "'^' 

^"•^tri;;:;— rfrr^^^-'- 
oo.urs (;). ' '""f""-^- -J-'n„"uishod when it 

"-sor's will: if ^ .^ .^^ ™;"™"f -^'fvin. the S.t: 
through „ oerta;n ™to he li " ''"•"•" "^ ^'^ "■"' 

^y looting the ..raXaTT '■""'''''"-'• '^^''''«' 
«.n>moni„tereo,,rof TifJb.^ i"™*! no^,,, (^3 j^ ^^^ 

— e.are:::;s,rr"dt::r"-- 


Bin*. 682, 684, 33 R. R. „,j, 
«25, por Cnr. 

(0 Ibid. 

if) Wood V. Icntkillr,; „„(,. 

J^™W» (1851) ,7 Q. B.V 

W™ (1851) 7 Ex. 77, 21 L. J. 
,t "• "» «• B. 576 (.h.,.i„^ 

"■■J operate aa a lircii,.t.) 


mg„i,l,„j. cp. .v„.v„, 

'»»ir (1887) 3.5 CI,. D. 681, 696! 
PC K.y J., 56 t. J ^.^ ^^^; 

(/.) It 800™, to ha>o somctim™ 

'"7" ";?"»'>' i" -Vmerica that the 

.Statute „f p„,„l,, „.,,irt i, „, 
™ur« a mistake.. B™,; ,. ;;,,,^ 

X"' .'■•.'!"• "''°'"- The limit, 
(1866) I,. H. J ,f L. ,29 

33? w.''^'' ' '■• •''""•• esM) 

>I3 L. J. c. P. 1.54. 

ii) Sen 7/5„^, ^ (7;v,/„„ 
note (.), p. 39o_ ' """' 



Dta«^. W« .httU have Mmetbing U> «iy in anothor o«n«»x»n J) 
S?.?r ol the tight.-or mlhcr want of righfai-of a« 
SJ^' Ucen-ee." Here we may add that a Uoenoe, being only 
«..,«.. ^^ ^j^^^__^^ ^^^^^, ^ „^i,er of the hccnBo.» 
;1 ;£35i' righU-i. notjsuiBiable, and confer, no right again.t a,,v 
third person. If a BO-eaUcd licence dooe operate to conkr 
an exclusive right capable of being prot«rti,Kl agaimi a 
•tranger, it must be that there is moro than a Ucen».. 
namely the grant of an interest or caaomont. And t h. 
question of grant or licence may further depend on th. 
question whether the spcciHol mode of ««■ or enjoyment 
j, known to the Uw as a substantive right or interest (m : 
a question that may be difficult . But it is submitted that 
on principle the distinction is clear. I call at a fri.'nd* 
house; a contractor who is doing some work on adjmnt 
land has encumbered my friends drive with rubbish; con 
it be said that this is a wrong to mo without spmal 
damage? With such damage, indeed, it is (n), but onlv 
because a stranger cannot justify that which the occnpi« 
himself could not have justilied. The licence is inau-rial 
Jonly 08 showing that I was not a wrong-doer myseli; llic 
I complaint is founded on actual and specific injury, not on 
a quasi trespass. Our kw of trespa* is not so eminently 
reasonable that one need bo anxious to extend to liconsocs 
the very large rights which it gives to owner, and 

(0 Chap. XII. below, nd /in. 

(m) Compare NuUnll v. Brace- 
wM (1866) L. K. 2 Ex. 1, 36 
L. J. Ei. 1, wilh Ormerod v. 
Todmordcn Mill Co. (1883) 11 
Q. B. Div. 156, 52 L. J. Q. B. 
445; and tm. Oalo on Eaaemcntii, 
7th ed. 42, 285. Contra the 

learned editora of Smltli's U'ad- 
ing CaM«, in the n..tfs to 
Armory v. Delamiric. 

(») Corbv V. Hill a»i«.' » 
C. B. N. S. 556. 27 L. J. ^- f- 
318, 114 H. E. B4U. S™ mot'- ■" 
Chap. XII. hclow. 


by reason of aUJ^, * ' " '" ""^' "'"»' 

common law he might Wo on, ^u , ^'" ''^' "'" "" ''°'^- 
-'try « an offonco und"""^"'' ''^'"«"- B"' ^"rcibio 

■»«ke any entry i„,„ J,.V,'f ";"" ^"^ ten»forth 
-e -he™ entry i, .^^ ^'' f '«'>—'», but in 
-"t Tvith 8tron/hand ,^r , '*"' '"'' ^ »"^'' «««• 
-poa<«ablea„d tyf h'T t "' '""P'"' ""' °«^3- 
M appear, to ^^£11 '""1'°^ "' ""* P"'-'"-' 
Tl.« statute is .tUl i^ wr' *. T'"'''^ "— ^ 
- the several Ameri:^ St^^Js' oT " *"" "-^"''^'«' 
»f the «,mmon law (<.) C o^' °' ««°P"«>d a« a part 

l»"«8ion or not: but oninl i " '"''"'^d '» 

;»-t of the statu., in a^ .of'^™.,'""'^^'^ ^ '" "» 
1^' >>«" heU that a rightf7ol I J"'^''''"'°"- It 

regards the entry it^lf, but is liable 
jiven to juaticM of n. , 

^^-^^ <»P- 1; 15 Eio. II. 



730, 60 L. J. 

Q- JJ. «i. 


ifoiLiLLij- independent a.t done by him in tl.o c.urso of hi. 
Utry ^vJucll is on the face of it ^^xungful, and coul.l 
■ 'im justified only by a lawful possession (p) : and .t 
should seem, for any other eonsequential damage, uitkn 
the general limit of natural and probable ,«nsequon,v, 
distinguishable from the very act of eviction. This is a 
rather subtle result, and is further .omphcated by II- 
rulo of law which attaches legal possession to phy>[c.l 
control, acquired oven for a very short lime, so it i- 
■definite and appreciable ' (9). by '!« "ghtful o«aci 
V being entitled to immediate possc^ssion (say as a nioil- 
• gagee having the legal estate), effects an actual entn 
by taking off a lock, without having given any notic- 
to quit to B. the precarious occupier: thus " in a von 
rough and uncourteous way," that is, peaceably, but onlv 
just peaceably, he gets posst-ssion: ome gotten, howovcr, 
bis possession is both kgal and rightful. If therefor. B^ 
turns him out again by force, there is roasouahl. m\ 
jLj. c probable cause to indict B. for a forcible entry, bo tb 

^^" •*• House of Lords has "decided (r) . Xevertheloss, according 

to later judgments, delivered indeed in a court 01 first 
instance, but one of them after consideration, and botl. 
learned and careful, A. commits a trespass if, being ... 
possession by a forcible entry, he turns out B . (.^; . More- 
over the oU authorities say that a forcible turning oi.t 

17 Ch. D. 174, 50 1,. J. Ch. 401 ; 
Hdwick V. 7/ou.iM (1881) 18 Ch. 
D. 199, 50 L. J. <:ii. 577, oml 
unthoritios there di«cu»»Mi. 

(5) Lord CoirM in Loin v. 
Telford (1876) 1 M'V- C»- "' 
u. 421. 

(r) Lown V. Telford (1878) 1 

.Vpp. C 414, 45 L. J. Ex. 613. 

Mr. Lightwpod w>em8 riifht in 

pointinK uut i^l-o«i's»iui[ of LanJ- 
Lond. 1894, p. 8S) that even if 
complete phv«ifal po»«i!«ion hM 
not boon gn-irM thu toisiui 
would bo justiSoJ I'v tlif ml' 
tlial, in raso "' Joulit. Ii'lial P"- 

wsaion followH title. 

(.) Seo tlio judRmont of K'V 

J. in BcdJ^I! V. MmH«:«' "■»' 

Edwiok V. //'..-to'., note (fi. 



of tho person in present possession i. it^U f ■. . 
entry, thouffh tho aet„«l ; " ^'"*''''^' 

■H; that enter 1. t 1 "\r' "'"'°'" ""'»-• 


tt) his possession bv th. holn of I t ^'■''''"^'> 

altl.ou,h his first Jntr \ i;;;""^'"^,f "'^^ 1--. 

-J— ,thes.„;,es:;r's::S^^^ 

But old iiuthorities also tUsH,u.n. 
,"iven bj. the statute to en nt " ' "'' . "" ""™ '» 
by the person really enticed "ll ^T ""' "'"' ^°'"^ 
not any disseisin o/h n " S ^r "■ ^ '':'"' ™"--^- "^ 
to countenance the notion of he! T^"" '" ">"" 
'" distinct wron.. T e '^T""'^ ""^P"'^'""' '^'"^T 

*h the, dissented is .tSarjSr:MtT 

«"ly by the ingenious distinetion-cert^ Inot ^t 

tho majority fz)— of onll » i "^'"'"'"'y not made by 

J ty W of collateral wrongs from tho IbroiWo 

(') Umbard', Eircnarclm. cap 
'• P- 1*2, ed. 1610 
(") a. us. 

•onMble Entry, 29. 

(y) .Vf»/„„ V. //„/„„rf (1840) 

'?'•*«'•• 6". 1 Sett N. B 
"<.«8R.R. 488, in /,„,.,„,■ 


Bi-i/dgc, (1845) 14 Jr. i VV at 
pp. «2-3, 69 H, R. 72,, ;/3 
they declared thom.elvo, „„™„. 

(-;) Tindol C. J. Mid that „„,- 
«o«slon ,rai„c,l by forcible entrv 

FreBh re- 
entry on 


. .- -i „lf Thfi correct view seems to to that the 

:'r «: £ a J^ J:-^ gained .y forcible entr, i. 

uX as between the p.rti», but he shall b« pun.hcl 

Stl breach of the pea. by 1«sin. it, We« ma^^"^^ 

fin« to the kine. « the latest decisions are correct tho 

s;ossi intruder might nevortheU. have had . 

c vTlremedy in some form (by special action on the ca o. 

would seem) for incidental injuries to person or goo . 

provided that they were incidental to the unkwfuH roo 

'Id not to the entry in itself (a). This reHnemen d«. 

not appear to have occurred to any of the old pleader,. 

A trespasser may in any case be turned oil Und boloiv 
Ihets gained possession, and he does not gain po.^. .. 
n U there J been something like acquies^nco in 1. 
pSoal 'fact of his occupation on the part of the rightM 
I'wne His condition is quite different from that o 
Tghtful owner out of possession who can recover lo 
oossession by anj kind of eSective interruption ol tho 
in'ud -s actual a.d exclusive control. A persou .ha 
Cten dismissed from the office of s*«l-- » 
had «iven up possession of a room occupied b, h n, in 
Wrtuf of his office, but had afterwards reentered aiid 
cupied for eleven days, was held not entitled to sue i.. 

Zss for an e.puUion by the -stee^ ;t t « ;n^ ^ 
that time. " A mere trespasser cannot, by the ^er5 act 
W trespass, immediately and without acquies»nce, givo 
Km elf wlLit the law understands by possession ag.i.t 
WL whom he ejects, and drive him te pro .^ 

title if he can without delay reinstate himscU i. h. 

former possession"(&)-There must benot only OOP...O,., 

{«) S«pe Lightwood on Poasen- 
.ioB of Land, P- 1«- 

(i) Bnmte i. Doiwon CIBWJ 

12 A. Jt E. 624, 6-29, W ^- '■ 
Q B 7 I' « "ow trespasser m- 


but effective octjupation, for thn „ • • ■ 

«-«» taken, much more ,f„ '"'^°"''" P°^sioa 

when the p„...„„ T .TX^ -'^ '»-' be proved 

a ".ere wrong-doer than "henl f " ''"^'°" '' 

-tract to take possession v") 1^ "f" ""-^^ his 

/possession hus been acquired thi' ""^' ■""* »■«" 

l-'o of things whichtLlitutsTer""".'^''^^''^ 

Itrespass at every moment «. Wo ,hal '"T " "^ ""^ 

possession continues, so munh T *"' "^'^^"1 "'"*'■ 

goods, wrongfully taken aT&st f" "'^ ""'"^'^ "^ 

» i>eld to bo a several ^ °"* P'^* ^^ """'ber 

continuing trespassorypoTsZn-r °"""'"' "^ ">« 
of larceny and make thrrZ "'" '^«'P'^'« «- offence 

Mv the true owner ^TtZ^ " y^^- ''^°"'- 
from an innocent third Z^ ^"°* '^ ''« «". <a»n 

^-; and, a« ther 1 rbwt tl'"" ''"''' '''''^- "^ 
"■e Statutes of forcible ZyZ " T '"^""'"^ '» 

- W is r«.onably n^lT^t^'r^^ '''''■ 
... •'"' "lo recaption (o) 


«««A^ (1877) 5 k n- *'"" 
812, •^ °- ^"'- 809, 

'«'"».s.„„d. lie'"- '■"''«' 

(•) 1 Wo.. S.Md.' 20. 

(128 E. B 894> .^^""^ ''" 

'■> the tl„rh»„ti. ceBtury. o„„ 
who ret«,k ti, „,„ J^ """ 
'■"™.C«v., port.,,, «„^J^ 





1 ^ 

;.. IL 

!' lirilfl 



,He inarj^ko enter on the first lifer's l^d for the purpo-:- 
lof r^e if the taker ha. put the goods the- "); 
they eame there by the occupier', own 7«"'8/.')>;\ 

, . EaTtaking «a« feloniou. (fc), BT perlmp^, as :t ha- 

^/..^CfrC suggested, after the goods have boon and tl. 

^ Cup- of the land has refused to dMiver them H). ^ 

session is mueh more easily cha.>gcd .n the easo f g « h 

than in the case of Und; a tr-ans.tory and "l"'"^"" •' ' 

tl«,us eontrcl has often, in erin.inal eourt,, b«n UM 

to an.ount to asportation. The difference may ha^o Ix. 

halnod by the rules of criminal justia^, but m a gen.vul 

tlTlt lies Lther in the nature of th. fa.ts th.. n. .nv 

arbitrary divergence of kgal principles m dealuv" 

immovable and movable property. 

One of the most important heads of justification uud.r 
a paramount right is the execution of logal F-- 
The mere taking and doaUng wrth that .hrch the 
commands to bo so taken and dealt ,, bo .t b 
possession of lands or g<x>ds. or both pc session a J 
nroperty of goods, is of course no ,vrong; and lu .a.- 
rr if poLssion of a house caimot be dehvcred ■„ 
ioS^enco to a writ without breaking tk- ho.«. e,..,, 
U^U n it must b>. (m). It is equaUy settled on .ho o,1m- 


of law : 



the goodg. It WM oven thought 
ucedful to stato that he wm nnt a 
Won. SCO Britton, cd. XicholU, 
i 57 116. At all events maim or 
wounding is not justified for this 
cause; but violence used in de- 
fence of a wrongful possession is 
„ now ««»ult,and eomm.nsnratc 
resUlance to it in personal self- 
defence is justifiable. 

(») Patrick V. Cclericic (1838) 

3 M. Ji W. 483, 49 «■ B- «'*' 

explaining Bhickst. Cram. i'i-> 

(i) Per Littleton J., i> U"' 

IV. 35, pi. 10. 

(*) Black4nne;. c- .li'*"*' 

(/) Tindal C. J. in .1*"""'' ' 
lla«es: but thii..«-m*^'"'. 

(m) 3em-9«'' <•"■ llOM;') ;' 
Co. Rep. 91 6, and in ISmL. I 


hand that -the sheriff „uat at hi, peril ,ei. the good, 
of the party aga.nst whom the writ issue,,' „^,, ..ofanv 
other goods which arc wrongly supposed to bo h ev . 
unavoidable ™.stat,. is no excuse („,. Mo. specie Z 

^ If " ^ , ''°''" " '" "•" *'^'™' "> -''-h P"v t 
property wh,ch . not itself the i„.n,cdi.,.:. ob'ect 

the a«. The broad distinction is that outer doors 
may =0 bo broken in ex.ution of pro< at the suT 
' P"™'" ^7-' >"" '" the suit of the Crown, or in 
oxecufon of process for contempt of „ House of Pa,ii 
n.cnt 10), or of a Superior Court, they may and ,nu • 
and thjs, .„ the latter case, though the Lte^t on , t 
d.»bed.ence to an ord.u- made in a private suft (p) The 
;;2;.t^c.rred to w,U guide the reader, if il,,,. 

Constables, revenue otti«.rs, and other public ..rvants 
and .„ somo cases private persons, are authorized bv divers 
statutes .to onter on lands and into houses for" dive 
puTH,ses. w.t a view to the discovery or prevention o 
or me or of frauds upon the public revenue. We shall 
not attempt to collect these provisions. 

f goods from the true o.-ner; it seems that the dis- 
tramor, a sheriff taking goods in execution, Z 


(») Glaufioole v. Yoiinn (1829) 
9 B. i C. 696, 33 B. R. 294 i 
Garhnd \. CnrlMe (1837) 4 CI. 
t F. 693. As to the protMlion 
0' Mbordinnto offlcem acting in 
PMd faith, >«i in til. Chapter of 
Uentral Eioeptiona, pp. 121— 
"23, abovB. 

(») Burden v. Abbot (1811) 
P.— T. 

H East 1, 12 B. K. 450, a claMi- 
cal case. 

(.p) And it is contempt in the 
sheriff hin,™:f not to osecute 
such proceis by breaking i„ if 
necesairy: liar,-,, v. //„,„„ 
(1884) 26 Ch. D. 634, SI L. T 
508. Otherwise where attach 
ment h, or was, merely a formal 
mcidenl in ordinary civil proceae. 
D D 





not acquire po»e«ion, the good, being ;• in the custody o£ 
Z Z'- (3). Most of the practical .mporUuico o£ th. 
It is in connection with the U« of landlord an 
tenLt, and wo shall not cater hero on the learning o. 
distress for rent and other charges on land (r). 

Distress damage feasant is the taking by an occupier oE 

landof chattels (commonly but net necessarily animals v». 

found encumbering or doing damage on the land, eitho.- 

to the land itself or to chatteU on the land«). H'^ 

against the continuance of a trespass akeady commenced 
It must be a manifest trespass; distress damage feasant 
ka^ataUowcd against a party having any colour of right, 
VgTone commoner cannot distrain upon another com- 
nioner for surcharging («) . And where a man is lawfully 
dunng cattle along a highway, and some of them stray 
from it into ground not fenced off from the way ho .s 
entitled to a reasonable time for driving them out before 
the occupier may distrain, and is excused for following 
them on the land for that purpose. What is reasonaWo 
time is a question of fact, to be determined with retcron» 
to eU the circumstances of the transaction (a;) . And 

(q) See IKctJ v. NiH>» ilMT) 
4 C. B. 172, 17 L. J. C. P. 160, 
72 E. E. 676. 

(f) Ai to diilrMs li general, 
Blaokst. Comm. book iii. c. 1. 

(.) " AU-duttiiU vlatteia ais 
^i.t>» damMM-teaMBtJ " 
Gilbert on Diatrew and Eeple- 
vin («h ed. 1823) 49. A loco- 
moU»e has been distrained 
damage feasant: Ambersale, in. 
B Co. V. Midland S. Co. (1853) 
2 E. *B. 793, 95 E. E. 810; it 
wai not actually straying, but 
had been put on the Midland 

Company's lino without the stain- 
table approval of that company. 
(() XoicM V. floiJcn; «"'''» «• 
Ro.coe [1894] 1 Q- U- *«■ «' 
L. J. Q. B. 767. 

(„) Cape V. Sautt (1874) L. E. 
9 (J. B. 269, 43 L. J. Q. D- 65. 
It ia settled that a commoner can 
distrain the cattle of a stninjer, 
notwithstanding that an action ot 
trespass would not lie (22 Ass. 
pi. 48) for the disturbanre. 

(I) Goodwyn -. I'hrrelri 
(1859) 4 H. <t N. 631, 2S L. J. 
El. 298, 118 B. B. 638- 


««»pa» and „„ rZttl^T"' "°? " "" ^'"'^^^^ 
*««]« haa notice (V) In ""'" '^' '""''' "^ ">o 

feasant is more f^ urod thirrT'^', ''"'""'' '^'""'«'' 
rent or service the Z7 . . ""^ ^" ""'• " ^» a 
in the day ti^^'l^TI of "''"' '" ""^ '''^'''' '»" 
<ian.age feasant one It lit'' ""' "■-«»• ^ut for 
it '"ay be the beasrwillt "''" "'"'''' »'''=""«' 
them"W. ButTnlth ^ ^""^ '*^°™ ^o can take 

-iotest^itrert^ rrhi-'rr ^-r' '^ '-^ 

token in the very act "\J iV ? '^"^'""""i must b., 
own individual tLpal "d ot^ ' " " '"'^=<> ^" ''» 

/Distress damage feasant ^,^ T T""'"'""'' ""'-""d. 

L trespass (a) ^'"""'' '^' "»"'" "^ action for 


owner's land (e). replace them on the 

-. fastened, and enter Ze / ,7° ol::'"'"^'/''""^'' """""■ 
have been Urgoly holpon by sUtut b" t " "' ""' 

l™ not forgotten its «n ■ T ' ^ eommon law 

-'".oryprowllTnis'^wanZ: ' "'^'^ '""''^ 



W 2 Win>. s.nnd. 671 
Otherw,. it ^„,, it „,^ ^^, • 

'" ''""^y '""ying when they 
"™ to tte defective (cnoe; .^ 

W Co. Litt. 142 a. 

-""f aatant gcieraUj. are 

D D 2 

"fri"'' »"■•.»»,.«?, below. 
Hep. 38 4. ' * '^'•• 

M. i W. 421, 46 B. B. 633. 

«^2Q.B.590. Otheri"e"lt 
"'" """''»' " already partly 
open: c™j„„ , aj ^ 

Q.B 544 •"■'"•"^•J- 


br neoei- 


In connection with di,trc» the Acts for the prevention, 
of crucUytoanimalB have introduced .pecuajosffioaUon,^ 
any one may enter a pound to .upply neccsary food and 
Tter to animaU impounded, and there « an eventual 
power of ..y, on eerUin conditions, to satisfy the cost 
thereof («). 

FinaUy there are ea,c« in which .ntry on land without 
consent i excused hy the necessity of -""P--"^- 
0,. the defence of the realm (/), or an act of chai,t> 
preserving the occupier from irremediable 'o-- " -"- 
times by the public safety or conven.ence as in 
Tt fi^ or as where a highway is impassable, an pas. . 
over the land on either side is i«^nt.>d; but .u in> 
Lt-montionedcase it is perhaps rather a matte.- of po.Uv 
ommon right than of excuse iff). Justrfieat.ons of th. 
Zd are discussed in a case of thecaxly s«t«,nth centn,-,, 
where a parson sued for tr<«pa.s in carrying away I. s 
i and the defendant justified on the ground that ,l.o 
corn had been set out for tithes and wa. i" ■la'.gcv ot 
l^ng spoilt, wherefore he took it and carried .t to to 
pontiff s barn lo save if. to which the pla.nt.ff dem„.-.,J^ 
KingsmiU J. said that a taking without consent >nn. b 
justffied cither by pufcli...eec«sity, or "by rc^en, of 
„,ditioi..«Liw"; neither of which grounds .s p. ..t 
herTking r « the true owners benefit .s just,l..bk 
jonly if the danger be such that he will lose h.s ,ood, 

whicheTBr it be, does not apply 
whore there U only a tin"'"' 
dedication ot a way, »ubji-.i t« 
the right ot the owner of Hie «»" 
to do act. such a« plouillnW. 
which make it irapas.ablo or in- 
convenient at certoli. t>mi- 
Arnold V. HMrook (1873) L. B. 
8 U B. 9S, 42 L. J. Q. B. SO. 

(,) 12 41 13 Vict. c. 92, ». 6; 
17 & 18 Vict. o. 60, «. 1; 
.apereedlng an earlier Act ot 
William IV. to the lanie e«ect. 
See the Digest of Eng. Ca» 
Law, ANIMALS, ». t. " Pound and 

yj See rP- '^iS. 176. »'^''»- 
(y) The justiScation or right, 


/without remedy if they are not tal«„ 4 
public necessity ho gL Ji7„!T '""P'" "^ 

." war ti™„ to ...k, fort~„? • I? r/rr'? 

intention,' «aid Kcdo P T - defendant's 

'"" i" t-pass and here '^^ " """""'^ '" ^''''"'>- •«■' 
for the pi..- ,tir, ,L ." ' ': " """".«' """ "" "^^ 

-- - ..n. CI pi:;:;^::rhr£''r 

n-mody ugainst their owner "S^ ^u , '"' 

<'-*,' «.n,„ge in another Jan', k^d ^l'"" ^"'^ "^ 
drive them out; and vet it u u i ^ "'" ""'*'■ *" 

then, out .o thati; drr"" '■'"'' '""^'^^ 
"<l>erwi»e if anoth. dri"! T" ''*'""«''• """ '' » 
)-d where the^ da^" 7 'T" "'" " "''"^"•« 
drive them „ut ";:'"""^' ' " ^ '""^ ■'■"^"■^•'- ™''.'- '» 
W.i«ninrin:l.i:J:::--^oin, too. it, 

P..rty might have hisrenrdyl' th! eo "' '" ''' 

destroyed, the t„ waa no U -i^r LT" Ti'r 


-.ood'W. J. eoneurred.'iLti:; 


l«) Cp. Littleton J. in v d 

« Bdw IV 11. <. 1, 
^w- iv . 35. If „ „,„ , 

, »rj/,y^,»^ ,uff„ hi, house to 

tarn I who am his neighbour 

»V break down the house to 

■void the danger to me, fo, if i 

W the house ,h,nd, it ,„ay burn 
"that I cannot quench the ire 
•Werwarf.." Tre.,p,.» on h,„d 
T" "'"'■'■ » ■»" l'»» Hghts, for 
«•• protection of hi, own interct 
"V be j„,tiflcd by reasonably 
•Pparenl neccity: r„p<, ,: 
«,,,. Wo. 2) f,9l2, , K. B. 

V;* " ^="- VII. 27, pi. 5 
<but the MM ^n. really to be- 

long to Hilary term of the next 
year, «o .. ,., Keilw. 88 «■ 
irowike wa, .till Chief Justice 
.„ '^»"'ra»n Plea, in Trinity term 
" "«[■ ""■' ">■ 86 6, pi. ,9, 
bo died in the following vaca- 
•■on, and Hede wa. appointed in 
h« .tead, ,7,. 85 4, whore for 
-Muh. 22 Hon. VH. we .hould 
obviously read 21); cp. 37 H™. 
vr. 37, pi. 26; 6 Bdw. IV. 8, 
P'. 18, which soems to citend the 
justification Ik, entry to retake 
8Wl. which bare come on 
anothor'a land by inevitable acoi- 
denl; .ee Story, Bailment., 
S 83 a, note. . 


nothing to be added to the .tatemcnt of the Uw, though 

it may be doubted wheth« it is now Ukely ever to bo 

.triotly applied. Excuse of this kind is always moro 

readily aUowod if the possessor of tho land has created or 

contributed to the necessity by his own fault, as where tho 

grantor of a private right of way has obstructed it so that 

the way Cannot bo used except by deviation on his adjacent 


Foxhunt- At one time it was supposed that tho Uw justifiM 

^tU^ entering on land in fresh pursuit of a fox, because the 

' destruction of noxious animals is to be onoouraged; but 

this is not the Uw now. If it ever was, tho reason f.r 

it has long ceased to exist (i). PractiooUy foxhunUrs 

do weU enough (in this part of the United Kingdom) 

with licence express or tacit. 

There is a curious and rather subtU distinction betwwn 
Ijustiiioation by consent and justification or excuse under 
I authority of Uw. A poaaflaaorjijusonaent, or a licensee, 
may commit a wrong by abusing his power, but (subject 
to the peculiar exception in tho case of lotting or bailment 
at wiU mentioned above) (m) he is nota. tte^asscr. If I 
Und you a horse to ride to York, and you ride to Carlisle, 
I shaU not have (under the old forms of pleading; a 
general action of trespass, but an action on the case. So 
if a lessee for years holds over, ho is not a trespasser, 
because his entry was authorized by the lessor («). But 
" wheSLfiotty, authority, or licence is gken to any one by 
the law, and he doth abuse it, ho shall be a tr(>spas6cf 
ab initio" that is, the authority or, juBUfication is not only 
determined, but treated as if it had never existed. " The 



(*) SMf T. NeltlefM (1878) 
L. E. 9 Ch. Ill, <3 L. J. Ch. 

(0 Patd v. Swnmtrhayet 

(1878) 4 Q. B. D. 9. a 1. J- 
M. C. 33. 

(m) Fp. 383, 3»4, aliu.i-. 

(») 21 Edw. IV. 76 b. pi. »■ 


l«w give, authority to enter infn - 

t«vo™(o); .o to the lord to .li 1;; TT '"" •"" 
'he ground to di.,r„i„d„„,^,3"-J» '"» — of 

to .CO if wMto 1,^ done- to th„ •« '"'" "> rover,.on 

toe Und to .„ Hi. ea.:,; 'HZTZ''" '" Tt "fT 
who enters into the inn n, . "'"kc- • . . But if lie 
,.™e, a,.,, an , i^" " ^tT UH ' T""^' '"•"«' 

down a tree; in those and T I'x ^""nonor cuts 

that he ont rod C ^^, l'"" "'^: '^' '^ ''<'i«'J8™ 
whichdemonstratoritT. r^ • ""'' ^"'"^ ">« "e*. 

anauthorit^UeA t::::!""''"^^^ 

/he authi: I o^hrr '^r""' '" T ™'>- -- 

Uful act: ho i, r„^h " """ '••"-^ " f»"3 


uf the 

(») Thi. i, \n rosport 
public rt.„„,„ „, ,^^ _____ 

'Mpers cmploymi-nt. 

rt The liability of a di,lr.i„„, 

"""'"""J")"", inspect of 

™j"-a to the real a.„„„„t of 
■Unago by 11 Geo. II. o jj 
■^19: butlhi, doe, notapp,; 

•Wly u„„l: A, V 
""..".w; (1863) 3 B. 4 s. 520, 

' '""""^ 'fwant ar. .liu 

"lilor tho common lav 

f?) The .-?,> r„;„„,;„. p„, 
» fo. Rep. ,48 „ ^ 

-«m that the rule, hoi„,f„„„Z 
<"•» prejomption of intent fr„„ 
•"b.o<luent conduct, wa, at fl„, 
«"ly . rule of evidence, aee p^; 

■»««.» (1890) 165 Mo,,. 453, 45J. 

MCp, Pollock and Wri„ht„» 
PoMoMion, 144, 201 

(') 11 Hen. IV. 75, p|. lo 
(0 Ozley V. Wnu. (1785)' 1 
T- «. 12, 1 H. B. 133. 


msining in a l.ou»o in poMowion of goods taken in 

oxooution for un uurcMonably long timo(M). It a ap- 

plicablo only whon there han been some kind of aitivc 

wrong-doing; not when thoro lm» boon a morn rofusal to 

do «)incthing on.' ou^ht to do--a» to pay for onoV drink 

ut an inn (x) or deliver up a distroBS upon a proper teii.lH 

of the rent due (./). ' If I distriiin for rent, and afLr- 

ward» tho termor oilers mo the rent and the arrears, an<l I 

withhold tho distress from him, yet ho shall not have m 

action of trcsposs against me, but detinue, betause it «a> 

lawful at the beginning, when 1 took tho distress; bul if 

I kill them or work thorn in my own plow, ho shall luiv. 

an action of trespass" (.')■ But it is to be oU'v.M 

that rotaining legal possession after the expiration el 

authority has been held equivalent to a now taking, anil 

therefore a positive act: hence (it seems) the distiiatioi, 

Iwtween tho liability of a sheriff, who takes poswssien ol 

the execution debtors goods, and of a distrainor; tl« 

1 itter only takes the goods into " the custody of the hnv,' 

end "the goods being in the custody of the lau, tli 

distrainor is under no legal obligation actively to rcil.livei 

tlieni '(a). Formerly tlieso lelinemcnts woro impertant a> 

determining the proper form otaction. Under the Judiia 

turo Acts they seem to bo ol«ok-te for moit pui-p"^-' of 

civil liability, though it is still possible that a iiueslii.n of 

the measure of damages may involve the point of tirspass 

ab initio. Thus in the case of the distrainor refu^ins to 

give up the goods, thero was no doubt that tru\ i or 

(«) Ash V. IJawitat/ (1852) 8 

El. 237, 22 L. J. Ei. 69, 91 

R. K. 466, 'f^ 9«- if accordinff 

i t^f^mJu^xmyG to the old aulhorit'i-", mo Pollock 

k JjICtS C^L'tM -*<* and Wright on Possesion, 82. 

ff/^f'P-iy (i) The f:\x_CvM.miiLiA.S''" • 

i.ij 8 Co. Hep. 146 o. i. 

(.V) Wetl V. .V.7,*. (1«47) < 
<;. 1). 172.17 L. J. C. 1'. 150. '- 
B. R. 675. 

f:) Littleton in 33 ll.'n. M 
27, pi. 12. 

(») Wnt V. .Vi4»'. I C- '• •' 
p. 184, 72 H. R. 583. piT ttiW' 







^>. — Hetnnliea. 
The only p,wuji„r romn.!v ,.„,i,bl„ »„,. „,; i 
«ro„g. i, .,;,,„„ Huma. r .„,"'" '^'^ "* l!^?- 
imperfect roinudy, j, gj, 
tlio ri(?ht of notion for i i 
nn adequnt* mitisfaoll „, ,,, 
without default in hii r,, 
hiive hia oetion (e). ji ,|o,,,; 
goods token by trespass . ^i 
n>ht of action, though it 
amount of damages. 

di«ot::dtv::i ^'^'^^^-^-^^ w^e forme.,y c«u 

• ,i;if..i 1 ,• . ^ ' "'"' '™ trespass was 

».lful and nmhcous." yet a trespass after notL no^to 

trespass on the plaintiffs lands w.s'.e.d to bo "tTfu, „„d 


P'''-« recover.. , ess than Hr;C™-:t:::L: 

— " "' 'Ming or 

V "has 
'"■ lose it 
may still 
■i'l ll'iit ihiM-..(akingof 
' 1 i true owner's 
' nf .:(iur~c. alloet the 

, LiHio- 


(«) Wilde ('. J. /, 
ton ubi lap, 

f«) Cwpo, V. KjK„rd, 
Hod. 6M1, per Holt c. J. 

(rf) See «„,^y„ V. foot (1847) 
«C. B. 238, 18 L. J. c. P. 177. 
'jyyld' ,. Edward, (1-94) 6 
' «. 11, eren where the defon- 
«"l UA intended ,„d en- 

desvoured to .void trospa^.inR- 
but thi. WM lonbted by Pollocli 
^- B. m .«,<,,„/„ V. Il„r„„ (I860) 
6 H. 4 >f. 184, I8S, 30 L. J. fi, 
33. 36, 123 B. B. 445, 449. Cp' 
Gay ford y. «<,„/„ [1898) 1 (j 
»■ 3.6, 87 L. J. „. „. 41,4, o„ 
tlie Halicious Injiirie. to Pro- 
perty Act. 



.. founds! on tort" «oU c«tB only on the C"-^ ^^t 
^Ic, unless by spooial «>rtiaoato or order (e); and thcv 
arc now expressly repealed (/). 

Tb. Court is therefore not bound by any fixed rul , 
but it might possibly refer to the old practice or h„ 
purpose of informing its diseretion. It seems Ukdy t. 
the »mmon praetioe of putting up notiee boards * Ih 
tSl the Uke words: "Trespassers will bo pr»ec„..d 
tZZg to law "-words which are, "if str.otly con- 
Zd, ' woodnn faUehood"(ff), simple tr«p«s« not 

depriving the .^^pierof eosts than for awardmg them 
Serai bette. and safer forms of not>co axe av«. k 
a common American one, "no txc«pass>ng, is a. ,*.! 

feelings of people whom it is every way impo taut 
JilLcbu't that they are also quite .ncfficent (.. .• 

(t) County Courts Act, 1888, 
, 116 (.atatituted for like pro- 
,'i,iou. of the repealed Aet. of 
1807 .nd 1882); see Ihe 
Annual Practice," 1912, ... 801, 


(A 42 S 43 Vict. c. 69. 

(5) F. W. Maitiand, " Juat.ce 
and Police," p- 1'. 

(») At all events the tlirrat «' 
,pring-guns, still not quite ».• 
known, can do the .. 
good, for to set sprinc It""' " 
itself an offence. 

(0 IxKkharfs t-ifc of s™tl. 
,ii. 877, ed. 1839, .^ "■'"'- 
Basil Hall. 

must be remembered that S< ,. 
lawyer a, well a. a m^ol^ZT IT '", "" ' 
legal knowledge and tastee d / !:, '"""^ "«' 

Noveb that identified t^Ti'th^ "I f '^"•""'■'• 
as the author. ^° "'■"" °^ '•>" l^^' -"tics 

An injunction can be eranti-d t,> ..„ » • 
-pa., .ueh a« the laX^nV ^ LTo^ =2 ^r"" 

does ,ot e^tend beyond the old 1 ntlTj; :''"" 
for damages: a reversioaier cannot h., -^ * 

withoutshowingpermanen ,-n . r "' '"J"""*'"" 

g permanent injury to the reversion f7\ 
Of course it mav be n ■,.!«.» i- . ■ . '°"-™'™ («;. 
may oe a Substantial iniurv Hm.,™i, vi 

out any direct damn™ t j "" "'J "O, though with- 

^« onJs own prirhlts W if ""'.■", ""^ 
-ie one pay for the right to do Jl 1 f ^ ""'"'"' "> 
withholding leave is worfl. V k ' '"' P'"''*'' «'' 

t^-titeSriht^hij^rT ^^'^ - "™- --"' 

"ight be defeatrb; br X tri;"''"''^ '"^•"^- P^^' 

(|_»'*)^L. B. 9 Ch. 221.43 L.J. 

Z,'^, ^'"^ »!». SI L. J. Ch. 
■■■ R; 20 E,. 462, .h» pla,-„li9. 


R- 9 Ch. 224, 20 

(«0 Sm L. 
Ch. Div. 592. 

(») J™,«„ v. .v,„/,y (js^gj 3 
E'- 22>, IS L. J. Er. 39. 77 
B- K. 608; /..7,„„, v. .S„„M. 
"np,„„, fe, ji ^„ J 

1 i. 





Nu.-nce.,Nf.sANCK is tho w.-aug .l«„c to a man by uukwf 
P^^F disturbing him in tho enjoynent of \n. propcrtv ,„ 
' "o„,o oases, in tho oxcroi^ of a common right. 


sonic cusea, i" •■"'■ - - , , 

wrong is in some respects analogous to tr«.pa«.. .".nd tb 
t«Q mav eoinoide, some kinds of nuisaneo bcn^ al.. 
continuing trespasses. The scope of nuisanc-. how.v,. 
is wider A nuisiincc may he pubUc or pnvnl.'. 

Public or eonunon nuisances alTcct the King's subj.Ki- 

ut large, or some eoi«iderahle p.irtion of them. >„.l. -, 

the inhabitant- of a town: and the perse,, tboran 

oBending is liable to criminal prosecution (a). \ pubb. 

nuisance does not nee^sarily cr^t. a civil cause of actio,, 

for ■my pers<m; but it may do so under certain ,,.„iditioi,. 

\ private nuisance alfect« only one p.™on or ,i dotor- 

;„iaute number of persons, and is the ground „1 cvl 

proceedings only. Generally it aftects the control. „>..„, 

enjoyment of iminovablc i-roperty: bu( this ,s not . 

necessary element according to the modem vunv „f tl,. 

kvv Certainly the owner or master of a ship lv,ns: n, 

harbour, for e;ample, might be entitled to comnb.m "t 

a nuisance crcat^'d by an occupier on th. vvl„.rl •<■ -1"" 

which made the sliip uhinhabitabh-. 

(„) There w.» ..rmerly . u..- Beneh DWWon -^^^^^^''^ 
,.U.ry writ for .he .b.t,n..e„t o. J--^^^;™;" „^,:"L ,«»» 
public nuisance, in citic. and cor- («» <""■"« ,„ji,,„,™,l ; « 
pcate tu«n, and borough,. See i«d,.mcnt on an ,J ■ tm™t 
L rnriou, precedent in F. K. B. Bu..cll on Cr.m. ». ,. 
1S6 D. .Apparently the King's 



o.xpo«., the ,K,«on «„,wc.r»ble for it to evil ^ ^ell ,us """-^ 

inmiiuu nrotcss in nfk« j • «otion for 

■ndiotablo '" ""^''' '-^ """""'"'^ - -" as -^„. 

"A eom,„on nuisance « an unlawfd «t „.. o,ni..ion ,o 
J ^hurgo . kga d„t,v, ,vh,e,. act or „™«i^ ..„d„„,"J, 

.0 Uvea ..etv, l,™lth, pro,...,, ..,,. ,.o.f„n „ni.o pnbh' 
- by winch th.. p„bl.,,. arc ob,tnn.„.d in the .J^-T.. 

In order to »n»,.in an indictment for nui»anco it i» 
e lu „, ,,„„„.„ ,^^ ^,_ ^._^^.^^^ interfen./; t 
" '* "" """wer to sav that the state nf tk- 

the obstrnetion i« in ,„„.„ other v, U^ """"''' 

Ti .. • . ""■' " Pi">liuconvenien«. 

Ttu« .t « a ..dietabl.. „u,«an» at eo„.,„» ,:":,: 


(»)Cr,m,„l Code (Indictable 
*r> "'■'• 1"» («. amended 

Lf"""""'"'' ■■ IS": cp. 
«¥.««, Dig„i„, Criminal L.4 
"«■"*, and i:i„,t„,i„„,„,^ 
■" tt= lndi.„ Pcn<U Ucfc 

>. 268. 

(») K. V, ?.,„,■„ (,8g^) 2 li. i 
8; 0^0, 31 L. J. Ji. c. ,69. 
i«odern tramways and light mil- 
»aj'« Lave bwn ^ade under 
•tatutory authority. 

S. ^Jl 


miut be 



highway not commonly used, or otherwise loaves room 
enough for the ordinary amount of traflEic(d). 

Further discuBsion and illustration of what amounts to 
an indictable nuisance must be sought in works on the 
criminal law. 

A private action can be maintained in respect of a 
public nuisance by a person who suffers thereby soim- 
particular loss or damage beyond what ia aufEered bv 
him in common with all other persons affected by the 
nuisance. Interference with a common right is not of 
itself a cause of action for the individual citizen. Par- 
ticular damage (e) consequent on the interference is If 
a man digs a trench across a highway, I cannot sue ium 
simply because the trench prevents me from passinj; 
along the highway as I am entitled to do; for that is an 
inconvenience inflicted equally on all men who nso the 
road. But if, while I am lawfully passing along: uLVr 
dark, I fall into this trench so that I break a limb, or 
goods which I am carrying are epoikd, I shall 
my action; for this is a particular damage to i 
resulting from the common nuiaanoo, and distinct from 
the mere obstruction of the common right of pii^sasL- 
, which constitutes that nuisance (/). If a trader is eoii- 


((0 Turner v, Hingwood High- 
way Board (1870) L. B. 9 Eq. 
418. Compare tiie liimilar doc- 
trine 08 to obstruction of lights, 

(«) " Particular daniaf^e " and 
" Bpocial damage " are usw^ in- 
differently in tiio authorities; the 
former srums preferable, for 
"ipecial damage," as we have 
leen, has another technical mean- 
ing in the law of defamation. 

y7) y. B. 27 Hon. VIII. 27, 

pi. 10. Action for sfoppimr h 
highway, whereby it Hi'oms the 
plaintiff was deprived of the urf 
of his own private way abutting 
thereon (the statcmi'nt is rather 
obscure): per Fitzherbcrt, mnan 
sliall have his action for a [uiblic 
nuisance if he i- iu'tc incom- 
moded than otherH. " !■ ""^ 
maV\i a ditfh aiTo-*-) ilio h^sih 
road, and I <onie ridini; alunir tlje 
road at night, and I umi my lii>n« 
are thrown in the ditcli so that I 


"yi»g h« goods in barge along a navigable river and 
b> r«.«.„ of the navigation being unlawLlly obet ^ct J, h.m a r.ght of action (^). Though a iZ sonZ 
con-^uence htely to en.uo in ™an, individual el: 

i rLt f'rih" " ' ''''^"'' ""•' ^p'^""" "-■ ^^''- 
BMheT::. oi ^1" ;:: „?•"" ""- ^"'"-o 

;, .L- ■ „.' ^ '°™" «Pons« in removing 

'■ this ..not of itself efficient part.eula. damage- Z 
• ao.age. though real, « "oo»n.on to all who .ig^t;; ^ 

Xh7:;T' "'";'^'™^'-'>- '" -'- the question oii 

, t,all.e or cu.tom Irom a man , door bj an obstruction 
10 a Inghway whereby his business is interrup^^dfld 
J^^s profi s d,m.n,s ed, seen,s to be too „>n>ote a dam^e 

the obstruction is surh as materially to imnede 7 
-.c jate access to the plaintiff, pW 7 it 
^ore than other men's, and amounts to soothing ik 
fclockmg up his doorway ,». Whether a given ca e fl 


tavo thereby g,<..t doraago and 
•Moyance, I ,h.:i lave mv action 
"gaimt him wlio made tiiis ditch 
"*''""> I «°> "or. damasre-i than 
•pjotlierman." Held that.uffl- 
«ent particular damage „„ laid. 
(?) /ioM y. Mile, (1815) 4 if 

^.S, 101, 16 R. B. 405, and in 

%e:ow L C. 460. 
(*) llml„bolt«m V. Lord 

,«*' (1867) L. H, 2 Ex. 316, 

'a. 36 h }. Ex. 184. 

»»■ a™ the comments of WUe, 
■ " ^"*« '. UMa^ s. Co. 

(1867) L. li. 3 U. P. at p. io„, 
"here ,nv*„ V. //„„,,,;„,j 
li-rket C„. (1835) 2 Bin-. N C 
-SI l» treated as ovcrrulcl by the 
remarks „f Lord Chelmsford and 
l^rd Cranworth. Probably thia 
would not be accepted in other 
jurisdictions whore tho common 
,' » """^ived. In Jtassachu. 
«lts, at let, (r»,.. ,. /, 
/orrf J/„t„ („. wai adopted by 
U>o Supreme Court in a very fuil 
and careful judgment: .V(.to„, 
""^'m (1837) 19 Pick. 147. 

(*) tiite.v. ioiion (1880) 14 
Ci. D. 512, 49 L. J. ch. 32I; 




under the rule or tho exception must dopcrd on the laCs 
1 case: and ,vhat U tho tru« princpU,, »n w hat 
1 extent of tho oxooption, is opon to some question ( 

nuisance to tho higiiwny ,"»;■ iu„ i,;,.i,« iv 

kept standing (or an unreasonable time m the h.,h«ax 

I ppos te a mans hnu.-, »o that the ae««s of eusto.ers . 

I rru,.ted, the ho i. darkened, and the F'-Pl" '" .', - 

„nnoved bv bad -nK4ls, this damage .s sulla.entb 1" 
tTcular direct, and substantial" to entitle the oceupior .» 
maintain an artion(n). 

The co„,.ption of private nuisanee was£orn.erly U,m,«l 
,„ injuries done to a manWr«>hoUl by a ncghbour 

Barber V. Pfo'^y [l»»'l '^ Ch. 
447, 62 L. J. Ch. 623. 

(0 In Fritz V. «»*•«» O"' 
„„to) Fry J. Jid not l».v Jo-n 
any general , ropwUnm. «<■» 

,e.lly c»n.i»tent ''''■*'■'';• 
itetrop. K. V". ■' » problem that 
can Iw finally solverl only l.y the 
llouo of Lord, ilse-.f. Aecordm,; 
to T.<io<t V. FMmongrrt' ('««•- 
,,„„;i. .l,"uld .-..m .hat blocking 
theaeceatoa .trcet H (it "ot 
justmed) a violation ot the <1 
tinct private right of ever; ..ra- 
pier in tho .treet; and ...=h 
rightJ are not the le.> private and 
distinct beeau.e they may be 

many, .e« /'""";• "■':"'' 
(1868) L. B. 4 Ex. 43 3S L. J. 

Bx. 1. In UiU »iew it U difficult 

to see that losn ot custom is oI1»t- 
„ijo than a natural ami l.roliJ,!' 
cnnsoiiueneo ot the wroni;. AnJ 
op. the <■a^« in 27 Hen. \ Hi 
cited above, p. 414. tn •'.■'*''■ 
c„„. Urd Weitbiiry slf.iu'ly 'li'- 
i.ento.1 trom tho maj.>riliv ul ' 
Lord, pro.'""' ■ I- «■-"'- •" 
p. 200. 

(„) rnmpbrll V. fa'Mi»'"»' 

ror,»r»»».. [1911]1K«-* 
80 L. J. K. II. 739. \w"""^r 
. an extraordinary casual ,.r.tlt^" 
this kind has to bo distiiii,'»i*'l 
from ordinary custom. 

(») ik!iJ»»M» V. ■'"'"'■<'''' 
L. B. 9C. P. 400. HL. J.I. I 
162. Compare turtlier, n' 
domage trom „nrca« "■ ' 
ot a high«ay. //»■>' '. '' ' ' 
(1878) 3 Ex. 11.26^; '"'"" 
D«y (1883) 12 d B- "■ ""■ 



"cta of ,hich stopping or narrowing right, of w»v ■ 
Hooding land by the diversion of .,tc"'u . ' ■""' 

li»vo bfon the chief sncc-ies fo^ uT "'''"'"" '" 

il includ™ ,.11 . '.""•'™("-- ^""10 ,„o<lorn m,thoritic» 

;;-uerog..rd.o!;.;:Lr^r ;::;;:—• 

whicli involve Mich din.ft ;„i„,.r ■', '"""*''■ uffoot- 

till, (t inlorfeivnw with t ho rin-l.ta nf ., io»- 

t- i^ a tree growing i„ . 1:;^: iTt 
'publ.0 ro„d or mv „e,ghb„ur-s land (s). I„ tlii "faVo 

■>».-hb„„r. It IS g,,,„„l,v. though not. n«„rily («, 

WKX. B. "Writof Assiz, — 
« .>«,snnpc." 183 I. ,,,. 
()') S(!0 por Jossol JI. R in 

™ En, at p. 543. 

'1) Coniui, iii. 216. 

(') I'"- X. B. 181 D.; Pe„. 
5?fetim. 5 Co. Hop. loTi ■ 
'7 ;■; f '""''"• (MS) 1 o. B. 
»2k. H L. J. c. P. 298, 68 B. K. 


Ih iT' "^-" 2 "■ * C. 302, 
311, 20 R. K. 363, 370; SmM v 
«.Wy [19041 2 K. B. 418, 73 
L<- J. K. B. 894. 

(0 Fay V. i-,,,,,,,,,, note (r) 
"here the Court was aalme to 
support the declaration after ver- 
O'et- The overhanging of 
E E 




.• • „ >r«Da» for which, however, in the davs 

variety and choico 01 .„u „ ..^ needlM» 1° inqun , 

pa»e-. Therefore it " j"- f/^^^'^thcther there . 

except for the "«*''"?"\''^^'T!^ Still there i, 

anything Uke °— 'V^^^^^n* ^ven .hc„ 
.„aldi.tinct.n^P--^.^_^ ^ „,.,.,, . 

they are combined^ a D08»e*sor in itself, while m 


„„tural and necessary «""""• tTnui^ee to the 
,Hus an "v-l-g-B-of or eon..c^ «^^ - ^^^^^^^ ^^ 
Und it overhangs because of .the neces y 
discharge rain-water upon It W- 

, , • 1 nf nuisance consists in obstruction* ot 
,, ur. » , Another k.nd f^^^^^^ ^^^^ ,,„ perty a£ otLc, 

,f this chss arc ^--,;^^'^ ;,,,,, not of douu.uo. 


- «l-U »co herealU^ ^^; ^^aiate ha..m or h.= ■• 
t,e .uterfer^c^ ^^^/i, „f use and e„io,vn>.,t . 
is enough that a legal h _„9iptod in 

interfered with by condact which, it persisUU 

y i>w « .»4»<>i 

br.»ch»., or growing of roota 
i„to > Mighbour'. «oil, l» not » 

(„) i!a(«'. «■ » Co. «ep- 
S3 b. 

(I) r. N. B. 185 li. 

(J) otherwUo «. to P»'''« 

;/i!,;.u..y Board (,1870) L. B « 
Gi). 119. 


of by the teehmcalname, » the oontmuous doing of «,mo- 
thms which interfere with another, health or oomfort in 
the ^cupation of his property, ,nch a. carrying on a noisy 
or offonsuo trade. Continuityi,ama.oriairactor: morelv 
temporary inconvenience caused to a neighbour by "the 
execution of lawful works in the ordinary user of load •' is 
snt a nuisance (a) . 

What amount of aimoyance or inconvenience will 
amount to a nuisance in point of law cannot, by the 
nature of the question, be defined in prceiso terms (6) 
Attempts have been made to set more or loss arbitrary 
limits to the jurisdiction of the Court, especially in ca,« 
of misceUaneous nuisance, as we may call them, but they 
have failed in every direction. Where nuisance is onco 
proved, the defendant's intention is not materid; but a 
proved intention to luinoy the plaintiff may be relevant 
to show that the defendant is not using his property in 
an ordinary and legitimate way such as good neighbours 
mutually tolerate, and it will naturally sot the Court 
agamst h.m in all matters of discretion (.). As to the 
.evcral classes of facts usually considered in cases of 
nuisance: — 

(a) It is aat necessary to constitute a private nuisance 
tli:.t the acts or state of things complained of .hould be 


3. Con. 
and oDjoj- 


(.-) Sarrop v. Ilirtt (1868) L 
«■ 1 K.t. 43, 38 L. J. Ex. 1. 

'ii'iiaUJI-alrrCo. [1891] 2 Cli 
<"«. «0 I,. J. Ch. 630. 
^ (') i» ta the coiMtrnction of 
■""■aiiico" in a cavonanl, whkh 

it ■ccms need not bo confined to 
tortious nui.!anco, see Tod-Heatly 
V. Benham (1888) 40 Cli. Dii 80 
58 L. J. Ch. S3. 

(e) See Chmtie v. Davev 
[1893] 1 Ch. 316, 320, 62 L J 
Ch. 439. 

Injury til 
need not 
be ahowii. 

E G 2 


not diMU- 
titled by 

tba nui- 


Pdioar, oou.fort ^^ ^'"^^T^^'^'^lZry^rL.. 
Vnmfort of human cxutouco — by an ordmary nm 

rJHd (.); the. .u.t be .omothj. mo. - 
more k.» of amenity (e), but there n«>d net bo r«'t'^ 
hurt or di»ea«e. 

(b) Ina^rtaining whether thoproperty of thopbinu.. 
i. „ fact injured, or his comfort er couven.enc« .u U 
1 terially interfered .ith. by un ^^H^— -,■:•:! 
li, hud to thoicbiiractcr of the noighbouihood and the P 
tSrcrcumstunees (/). Bat the faet tl>at t e ph>u 
w al eady exposed to some inconvemence of he 
Zd wiU nut of itself deprive him of h.s remcd, 1. ■ 
•there was already a nuisance, or what wou 1 1« 
nui n^e in a dilleront kind of neighbourhood, that. „. 
~ n «bv the defendant should set up o. 
irncc {0). He is not entitled to intUet on the pi .nUll 
:"£! amount of discomfort in e.»,soi WW.. 

already tolerated by local usage under the e^..tnu 
nins W. The fact that other persons are wrong- 
doers in the like sort is no excuse for a wrong-d er 

If it 


• „;^ " This is but one nuisance among manv 

(i) U-aller ». Self; 4 De O. t 
Sm 315, 321, 322, 20 L- J- Ch- 
433, 87 H. B. 393, agd. on 
api,ral, 19 L- T. 308, 87 n K. 
401 (Knig-it-Bruoo V.-C. IBSl); 
Crump V. Lambert (1807) L. B. 
3 Eq. 400. 

(,) Salvin V. North Br«t«>epeth 
C„„(C<,. (1874)L.B.9Oh.705, 
it L J. Ch. 149; »o judgment 
o. J.m» L. J., L. B. 9 Ch. .t 

pp. 709, 710. 

f A St^ Hehni SmMiiKI '-''■ 
V. riW^(V805) " "■ 1- ^■ 

at p. 865. ,,^ 

C,) Waltsr T. Sti/.-, "»<• (''I 



would tlourlv be a wronL. I , 

w«.ng-Jocr bv .b„ l,,f„\' ™ » 'T. ?"""' '"^ "-'i- " 

nui..„c^. ,„orofL it ,,27^ ""*' '*"" "' ""> °thor 
compluined of ..i^to,! bof '. " !" '"'■ ""'■«««" 

i-n-o to tb„ „ui,an ;„,::: Tr 'r'" "•»' ■•^ « ....„ 

«med,. hd.n,a^Jil^°'; '"''•- '"ff"-'" both the 

« tl.o plnintiff bo ba..d of t ^^ ' ,■ , '?^""'''"''"- 
'icquicscenco. But tho^ „ ,."'.■"'' ""'""I fomodic by 

«^^-»- •■^ir,rr;:ti'ir»f~' 

appropriato proof. '""■' """'" out by 

-d hi- noi^hbour ToTn „ r '""'"'" "" '""" ""n land, 
■"i-in, L^ ; 'i" ^t^" ""^ |""Win. on his own 
-oise, vibration, or the ,1' J! :'""™' '"> «"''» "-<> 
be a nui^anco, PoL 1 „ ' ' " rf '^ ^""'^ •"-"-» *<> 

■»a-i«nooo,npIai„t(„) """ ''""'-^-"r, i„ tit,, 

(0 C'rutnlfu V /■ -ij 
W) L. R. 2 Ch. 478, 36 r,. J 
1 ''*• '"'■" "«■"» l»i« wi 

«) Blurkstono ii. 4o3, 
-ii-i!££:".» (1865) n H. L. 


'■■642 30 L. J. Q. „. ^ 

W '^V'^"..? V. St. //„,„., 
*..*.,,,£■„. (,885, L. R. , CI,. 

^l^U. D.V. 852, 48 L. J. Ch. 








ij. 1" 

■ 77 

It 13. 







16S3 Cast Mair StrMt 

Ht«h«ster, M«» York 1»6Q9 USA 

(716) «H2 -0300- Phon» 

(716) 288- 5989 - fut 


or nocM- 


ptf ae of 





nience of 
place pet- 

M Again, a nuisance is not justiHed by showing that 

f for them " (*>) . So it is an octionabk nu.saaia 

lutit unwhoLome and unfit for habitation, hou, 
I ke ping of swine may ix. needful for the suslonauc 
S3 Merchants and tradesmen cannot load and 
"uL^SL goods iu a town without -o te.n^ra. 
obstruction of the highway, but rt rs -^ --^ : t 
„f tl,p hiffhwav is so extensive and constant o^ to 
lit XroUon of the highway to the tra.lo. . 
own purposes (r) . 

(d) Where the nuisance «,mpkined of consists wholly 
L chiefly in damage to property, such da^afie „,a, Ix 
Ued as is of appreciable magnitude o^^^^ 
^ of common intelligence; not something d.^co^a 


(„) Aldred', ea. (1610) 9 Co. 
Bep- 59 a. 

(p) Jonei V. Powell, Palm. 539, 
»pproved and explained by Ex. 
Ch. in Bamtord v. Turkey 
(1862) 3 B. & 8. 66, 31 L. J. 
Q. B. 286, 129 R- K- 234. As to 
" convonient," soo next para- 


(o) AUrad't oo. note (o). Cp. 
Bndcr V. Soi«»r,i (1876) 2 Ch. 
D. 692, 701 (Jowl M- !*■'!■ ■" 

L J Ch. 414, followoJ in &"'- 
Hardt V. Jtf.»(«.» C189'J1 « » 
D 686, 58 L. J. Ch. 78T, '-hicl. 
wa» al.o intended to tollo>v £<.»- 
ford V. TurnlKS C'st ""'si »»" 
not to lay down anytluns « 
see/l.-W. V. C»(.*S»''119'"I' 
Ch. 205, 70 L. J. Cli. 1«- 
(r) ^.-e. V. iJr.://.("» "'"' 

[1900J 1 Ch. 276. OJ 
204, C. A. 

I I.. .1. l-'l'- 


,ab)e only by scientific tost,(.). And acts in themselves 
^wful and .nnoxious do not a nuisance mo^ly 
b..oausc they make a neighbouring hou or roo.n less m 
or carrying on some particular industry, without inter 
fo"„g w,th the ordinary enjoyment of life(,) Bu^ 
where material damage in this sense is p o ed or 
material d,seomfort according to a sober and roaso abL 
s^ndard of comfort, it is no answer to say that the 

*clf proper and convenient for the purpose. A ight to 
do so t, ,Hat otherwise would be a nuisance nfay L 
.tabhshed by prescription, but nothing less will scrv 
Pr in other words a place is not in tho sense of the law 
convenient for me to burn bricks in, or smelt copp 
or carry on chemical works, if that use of the place i^' 
eonveuient to myself but creat.. a nuisance to ..J :;: 

is ils^rrftf "'"t-rr''"'"" "^—-^ anoyance Mode.„, 
.8 necossarj to constitute a nuisance, nor a«, the possible '"""'^■ 
jrcos of annoyance exhaustively defined by ZTll""- 
tow. Smoke, una<=eompanied with noise or noxious 


(«) ■S^rij.y, Aort/i Bmnci-vf-a 
Cod Co. (1874) L. R. 9 Ch. 70,5 
« L. J. Ch. 149. 

CO Hoiimon v. KUcitrt (1889) 
«Ch,DiT. 88, S8 L. J.Ch. 392; 
Ifarren v. Sromn [1900 1 2 Q b' 
122, G9 L. J. Q. B. 842, judg- 
ment of Wiijfhl J. revMsod in 
CA. [1902]1K. B. 15, 711,. J. 
•£• B. 12, but in effect reitorod by 
"» "»"M of Lords in Co//, v. 
«om« „„H Co/onial stores [191)41 
i^ C- 179, 73 L. J. Ch. 484. 
Me ordinary enjoyment of life, 
ho»cvcr, seema to indude tho 
Muitenanee of a duo lempora- 
'•m in one's wino collar: Xein- 

httrdt V. Mentmti (1889) 42 Ch 
D. 685, 58 r,. J. Ch. 787. 

(«) St.Jlflc,,; Satdting Co. 
V. Tipping (18C5) 11 ir. L C 
6«, 35 L. J. Q. n. 66, Bigelow 

,,■..„■ *"' """f"'-' »• T,,tn/e„ 
(1862) E^. Ch. 3 B. 4: s. 66 
31 L. .T. Q. B. 286. 129 
B- R. 234; Co„„ V. T.ed- 
Mter (1862-3) 13 C. B. X S 
m 32 L. J. c. P. 104. Theso 
auUioritios overrule Hole v. flor- 
lov (1858) 4 C. B. N. s. 334 
" L. J. C. P. 207: see SUiil 
Iron Co. V. I„g/u (I8S2) 7 Ann 
Ca. (Sc.) at p. 528. 





vapour, noi.e alone, offensive vapours alone, although not 
:P u. to,. may severally eon^t.tuto a nu.anc.. .„ 
he- cner A acljoining or neighbounng P^oPf ;V ^^ 
? ;;rsi,tent L,^, «nd toUing of la^c ^lls , , W 
,,„dLusie, shouting, an.l other, th » 
fo m noes of a eircu- (.), the eoUoet.nn ot a ero«,i 
a^o^vorks(a), to the grave annoyance o J^cllci.- 
ne ghbouh^d, have all been hold to .« nmsance , 
ILined by the authority of the Uourt. The use ol 
dweln-hous ir a street of dwelling-houses, >n .. 
o toa"; and .ecustomed n,annor, is not a 
hough it .nay produce n.ore or loss and n,,™,- 
venieneo to a L.ghbour. But the eonvers.on of part ol 
;:r : an uuusu^l purpose, or the sirnplo .na— .. o 

iXbitants are disturbed all night (oven though. 

fa:) Bomillv M. R., Cramp v. 
Laml^rt (1867) I- R- 3 Bt,. at 

Sim N. S. 133, 89 n. B- 2*5. 
The boll, bolongod to a Koman 
Catholio church: the judgmfnt 
point, out (at p. 100) that such 
a building is not a church in the 
eye of the law, and cannot claim 
the >amo privileges as a parish 
church in respect ot bcll-rin(-ing. 
U) Inchbald V. Banln-Jton 
(1889) L. B. 4Ch. 388: the circus 

was ciBlitj-ave yards fr-m 'I" 
plaintiH's house, and ' H.muOT- 
out the performance tlictJ m 
music, including a tromb,mc ...d 
other wind instrument, siiJ » 
^iolon^ello, and great i.ji«'. «m 
.houling and cracking of »liil«. 

L. 11. 5 Bi. -it, 37 L J. 1.- S; 
It was not dciidcd n* 
noise would alone liavc \m ^ 
nuisance, but Wickcn, \ .-l_ 
strongly inclined to tloi.k t 
would, see L. R. 5 Ei- at p. 3<- 


m 1,0 tound them), do.,, so at liis own risk (//• 

In makinfr out a cu.6 of ,u,i.,ai,co of this .haract.,- 
C..0 „.. ahvav, two th.n,. to ho conside.vd, ,ho ■ ^ 
of the pl„„t,ff, and the of tho d„fo„do..t. If Z 
house. adjo>„,„g ea.h other „o so built th«t from th, 
commencement „f their ..istenco it is manifest t Jeat 
adjommg ,„hahit„nt ,vas intended to enjov hi, ^n 
Foport, for the ordinar, purp.™ f„, .hieh it Id ^ 
ho d,frerc„t parts of it wo. eonstrueted, then so kn. a! 
he houso ,s so u,ed there is nothin.. that ean bo ro,.'lH 
.n law a,, a nu.sanee whi,.h the other partv ha., a .^ ht t, 
prevent, But, on the other hand, if either' partv tu '„ h 
house, or anv portion of it, to unusual purposed .n , , h 
—•as toprodueeasul«tar„i„li„j„,.; J • .,;„,,:'' 
't appears to „,e that that is not aeeord,. , p ; "; 
or authorUj- a reasonable use of his onn p.opertv i 
h.« ncghbour, showing substantial i„,urv,'is en i ,ed ! 
protection in). ' >"iiii(a to 

be only a nght enjoyed in comn.on with otlier perso™ L^r" 
;t - immatonal that the plaintill sullcrcd „o , " %"^«ff 

at al . Tl u any one eomn.oner can sue a stran^^er who 

fe<^ h,s eattle departure the ™mm„nM); and anv one 

fa number of inhabitants entitled by local custon, o 

a particular water supply can sue a neighbour who 

•^'dendc of tho House of Lords in L.,o« v. Fkh.mrujn:' 

«h. 414. ^- ■'• '""". 1 «m». Saund. 620, 

Wl.rJSeIbornoI,.C L R. r 'n ','Z'°"J- ^""' ^'*'»> 




oaiiBcd by 
dent ttctA 
or default§ 
of different 

0b8tr ac- 
tion of 


Cmnvany (/), that the righte of acoe» to a highway or a 
navigabb river incident to the oceupation of tonemento 
thereto odjacent are private rights within tho meaning of 
this rulfiCjf). 

(g) A cause of action for nuisance may bo created by 
■'independent acts of different persons, though the acts of 
any one of those persons would not amount to a nuisancr. 
"Suppose one person loaves a wheelbarrow standing on 
a way, that mav cause no appreciable inconvenience, but 
if a hundred do so, that may cause a serious incon- 
venience, which a person entitkd to tlio uso of tho way 
has a right to prevent; and it is no defence to any ono 
person among the hundred to say that what he does causes 
of itself no damage to the complainant" (A). But this 
does not mean that a plaintiff may make two or moro 
independent v/rong-doeri co-defendante in a smgk action 
for damages, whatever the rulo may bo where only an 
injunction is cLiiraed (»). 

Those who create a uuisuaco by theii- own aots are iimio 
the less liable because the nuisance would have lx«.'.. 
obviated or removed if other parties, such as local autliun- 
tiee, ha^ thought fit to exercise their powers in that 

\ species of nuisance which has become prominent in 
modern Uw, by reason of tho increa«d closeness and 

(/) 1 App. Co. 802. 

(j) Frits V. Habson (1860) H 
Ch. D. 542, 49 L. J. Ch. 321, 
finprn^ pp. 41£, 416. 

(A) Thorpe V. Brumfitt (1873) 
L. B. 8 Cli. 650, 656, per Jame« 
L J., foUowod by Chitty J. in 
Lambton v. MMM [1894] 3 Ch. 
163,' 63 L. J. Oil. 929 (a fax- of 
nui^ant'e by noiae). 

(i) Sadler r. O. n: II. <"«■ 
[1895] 2 Q. B. 688, 65 t.. J. 
Q. B. 26, afflrmod in II. I'- 
[1896] A. C. 450, 05 L. .1. <h B- 
462. Qii. as to tie ™lo in Sc fiMish 
procedure, per Lord Shand 
[1896] A. C. at p. 15.5. 

(t) OgHon v. .ibnJ<-" "<•; 



height of buildings in towns, is the obstruction of light: 
often the phrase " light and air " is used, but tho addition 
is useless if not misleading, in ^much as a right Lo th<' 
uccess of air over a noighboui and (othoiwiso than in 
some definite direction to sou rtiuular pkoo) (1) is not 
known to the law as a subject ux property (m)- 

It seems proper (though at tho risk of digressing from 
tho law of Torts into tho law of Kasemonts) to statf hero 
tho rules on this head as settled by the dot-isioiLs of the 
last thirty-five years or thereabouts. 

Thr! right to light, to begin with, is not a natural right Naturo of 
incident to tho ownership of windows, but an casement ""^ ^*'''' 
to which title must be shown by grant (n), express or 
implied, or by prescription at common law, or under the 
Prescription Act. The Prescription Act has not altered 
tho naturo or extent of tho right, but has only provided 
a new mode of acquiring and claiming it (o], without 

(0 C/uuUi/ V. Acklaiid [1896J 
2 Ch. 389, 64 L. J. Q. li. 523, 
C. .\., may probably bo taken as 
correctly stating the general law 
to thia extent, though the House 
of Lords waa prepared to reverse 
the decision on the somewhat 
peculiar facts of the case. After 
argument in H. L. the parties 
came t» terms and the appeal wus 
withdrawn by consant, [1897] 
A. C. 155. 

(,"0 Citij of Lonitott Brewcitj 
<-i. V. Tennanl (1873) L. 'B. s, 
Lh. at p. 221; Ifebl, v. BiiU 
(1862) Bs. Ch. 13 C. B. N. S. 
»", 31 L. J. C. P. 335; Bri/aut 
V. Icfii-tr (1879; 4 C. P. Div. 
172, especially per Cotton L. J. 
•t p. 180, 48 L. J. Ch. 380; 
Harj-ii V. J)e Pi„„a (1888) 33 
Ch. Di,. 236, per Chitty J. at 


p. 250, and Cotton L. J. ut 
p. 259. As to implied grant of 
such righta by an adjacent owner. 
Cable V. Jiryant [1908] 1 Cli. 
259, 77 L. J. Ch. 78. A per- 
sonal rijfht to access of oir van 
of course bo created as between 
parties, if they choose, by way of 

(tt) Xotwithbt:indinjf the doubts 
expressed by Littledalc J. in 
Moore V. Itawson (1824) 3 B. & 
C. at p. 340, 27 II. K. 382; see 
per I.ord Sclborne, Bat/on v. 
Aiiffus (1881) G App. Ca. at 
p. 794, and Lord Blackburn, ii. 
823, and the judgments and 
opinions in that case pastim a-s to 
tho peculiar character of negative 

(o) Kclk V. Penraon (187]) L. 
R. G Ch. a' :p. 811, 813, cf. 



taking owoy any moilu which existed at common law (p). 
The right can bo claimed only in respect of a building: 
the UBO of an open piooo of ground for a purpoeo roquirinu' 
light will not create an casoment against an adjacent 
owner (g). 

Any aw. Assuming the right to be ostubli,^he<l, thero is a 
""■"^ wrongful disturbance if the building in respect of whicl. 
mtiitan- it cxisU is SO far deprived of access ot light as to lenclir 
Slagoi. it matcriaUy less fit for comfortable or beneficial use or 
" "°°*- enjoyment in its existing co'-dition; if a dweUing-hous . 
for ordinary habitation; if a warehouse or shop, for tin 
conduct of business (r). The action is for nuisance aii.l 
not for the infringement of a right to a spociHo fiuantit\ 
of light. ■' There must bo a substantial privation of lislit. 
sufficient to render the occupation of the house uncomfort- 
able, and to prevent the plaintiff from carrying on his 


L. B. 9 Cli. 219, approved in 
H. L.. ''«?'« V. Ilom'^ and 
Colonial atoret [1904 | A. C. 179, 
78 L. J. Ch. 484. As to tho ac- 
quirement of right to light a» 
between diffcsrcnt leasers under a 
common lessor, Fear v. Morgan 
[1906] 2 Ch. 406, 75 f.. J. Ch. 
787, C. A. Aa to persistence of 
the easement notwithstanding 
unity of estate where there is no 
unity of poascaaion and enjoy- 
ment, Richa rdton v . Graha m 
[1908] 1 K. B. 39, 77 L. J. K. 
B. 27, C. A. Aa to the necea- 
sity of continuous enjoyment 

" next before" action, llyman v. 

Van den Bergh [1907] 2 Ch. 516, 

76 L. J. Ch. 554, in C. A. [1908] 

1 Ch. 167. 

(j») Aynaley v. Glover (1875) 

L. R. 10 Ch. 283, 44 L. J. Ch. 

523. Since the Proscription Ait. 
however, the formerly accuatomed 
method of claiming under the 
fiction of a lost grant t-an be 
seldom, if ever, useful: see 
Hymnn v. Van dm Ber^h. la« 

(?) See Potta v. Smith (184)8) 
L. B. 6 Eq. 311, 318, 38 L. J. 
Ch. 58. As to what is a building 
within the Act, Clifford v. Jl-lt 
[1899] 1 Ch. 698, 68 L. J- Hi. 

(-) Kelk v. Petn-KOii ll»71) 
L. R. 6 Ch. 309, 811; Cil-J of 
London Breiverfj Co. v. T'^nmrd 
(1873) L. R. 9 Ch. at p. 216. 43 
L. J. Ch. 457 ; Colh v. Home «nd 
Colonial Stores [1904] A. C. 179, 
73 L. J. Ch. 484, II. L., revers- 
ing ». 0. in C. A. [1902J 1 Ch. 
302, 71 L. J. Ch. 146. 


0B8TBUCTI0N OP LIGHTS. bu.ine« . . . on the promi.*, „ tenefloiallv 
im ho had formerly done" (»;. 

Decision „nd dicta i^hich luid do,v„, or soomed to lav 
dott-n, that the ripht acquired i, to all the li^ht, or whaf 
1«» boon eaUod aii avera«» maximum of tho light, .omins 
through u particular window, are now not to ho reliod 
on («) . It soems that a right to a special or axtra«rdinarv 
amount of l.ght caimot bo acquired under tho Pr^criptioL 
-Wt by ,'0 .years' us.u- oven with knowl-dpo on the pari 
ot the servient tenement («). 

At one time it was supposed, by a,u.l«gy to a roguhi- 8„pp<«d 
tiou m one of tlio Metropolitan Local ManagcKnt let- '"'» " 
as to tho proportion between tho height of new buildings 2^"^^ 
""d tho width of streets (x), that a building did not S?" °' 
coiistituto a material obsU'uction in the eyo of tho Ia>v or 
•a least was presumed not to bo such, if its elevation sub- 
tended an angle not oxceeding 45" at tlio ba;50 of tlio li„ht 
uUeged to bo obstructed, or as it was sometim,^ put feft 
i-> of,t to the plaintifl. The supposed rule w>« 

(>J Kuling of hnt C. J. in 
"'"■* V. Slaoe:/ (1826) 2 C. S P 
M5, 31 B. H. 679, approved ia 
U. L. in Coll,; Cat, (last note). 

Sach are Seoll v. Pape 
CM86) 31 Ch. Div. 554, 55 L. J. 
(■h. 246; laiaru, y. AnMic 
"•"toarap/tic Co. [1897] 2 CIi 
2IJ. 66 L. J. Ch. 522; ,,-„,„„ 
V. Bww» [1902) 1 K. B. 15, 71 
I- J. K. B. 12, and, it ,eem., 
Jl™™ V. JIoll (1878) 3 Q B D 
"8, » L. J. Q. B. 331. r^le', 
»• Jaei (1866) L. R. I a. 295 
|» good law, but the form of in- 
Jimction there given haa l»en too 
•lavishly followKl, and tho head- 
«e Mon.8 too wide. Lanf,a,chi 
"■ Mackenzie (IH67) L. R. 4 E,,. 

<21, 36 I,. J. Ch. 618, i. relieved 
from tho criticisms passed on it 
in judgments now diaapprovfd. 
See Coll, V. Home and Colonial 
Store, [1904] A. C. 179, 73 h. J. 
Ch. 484, which will now bo tho 
leading case on tho right to light. 
As to the application of tho 
principles there kid down, Jolly 
V. KiM [1907J A. 0. 1, 76 L. J. 
Ch. 1. As to the measure of 
damages where the plaintiff occu- 
pice a eontinuous building site, 
Griffilh V. Bichxrd Clay atid .v„„,' 
[1912] 1 Ch. 291. 

(») -Imbler v. Gordon [1905 1 

1 K. B. 417, 74 L. J. K. B. 185 

(«) 25 S 26 Vict. c. 102, s. 85. 


meot or 
of light!. 



repudiated long ago by tho Court o( AppoaUi/) • «^^ 
tb! statutory rcguUtion, though it d«» not aflord^ i c 
rulo for dealing with private UUe., may te u«k1 a. . 
rough working test («). 

\n existing right to light is not lost by enWgin.. 
.buildTng, or al'ringW the windows for ^v^ch -^^ 
of light Is claimed. So long a. the ancient 1 ghU, o . 
ubs^tial part thereof (b). remains substantially cap.i ■■ 
of cHinuous enjoyment (e), so long .the existing r Ji 
eontinues and is protected by th, same ,,/ 
"an existing right to Ught is not lost by interrupUc, 
Mn>e principlM apply to alt, r|.- 
tion» during tlio eutrclicj- ul tl"' 
■talutory period Jor arriuirins tho 
right. Bnt there mint at all cvenn 
be a oollnite mode of mt": 
narrit v. De Finn' ems'" " 
Ch. Div. 239, 561.. J.Ch. 311. 

(o) Tho alteration or rebiiiUUni; 
raunt be continuoui cnou^-l[ to 
.how that tho right i. not aban- 
doned; see Moore ». «""■'» 
(1821) 3 B. & C. 332, 27 U. K. 
375. All the local clrcumstam e> 
will he ciinsidcred; Itnlhis v. 
7).VJi»«o» (1895) 29 CI.. I). l-i5, 
54 I, J. Ch. 776. There must be 
some Bpociflo idcntiBoation ol tto 
old li(?ht aa coinridrnl witli the 
now Petidarva v. Monro [189i] 
1 Ch. 611, 61 L. J. Ch. Wl. 

(rf) Slaiakt V. n,ir,l 118G9) 
L. B. 5 Ch. per Qiflard L. J. a' 
p. 107. But only tlio «i-tin! 
right: an obstruction tbat Mould 
not have boon actionable biluta 

tho alteralioa.< ilooj not b me 

,0 afterwards because tliry lia'« 
made it more memiu-in,- -t. 
iiikmon V. Coiiiiellij [IdU'l ' 
Ch. 678. 76 L. J. Ch. W2, C A. 

(») Parktr i. Ft"' ^i'"""" 
;;„(«; Vo. (1893) 2* Ch. Dlr. 
282- KceltliMtical rommMioncri 
,. Ki«o (1880) 14 Ch. Div. 213, 
49 L. J. Ch. 529. 

(i) Judgment of Lord Bavoy 
in CMt't fat'- 

(a) Taplins v. Jo"" (1866) '^ 
H. L. C. 290, 34 L. J. C. P. 
342; AgiuUtl v. Glover (1874-5) 
L B. 18 Eq. 544, 43 L. J. Ch. 
777, L. B. 10 Ch. 283, 44 L. J. 
Ch 523; HcclHiuttical Comirni- 
„„„„, ». Ki»o (1880) 14 Ch. 
Div. 213; Oreenmood v. Hormey 
(1886) 33 Ch. D. 471, 65 L. J. 
Ch 917. 1' " "''' necessary to 
prove an intention of preserving 
the ancient lights: »»"'* J- 
Baxter [1900] 2 Ch. 138, 69 
L. J. Ch. 437. 

(J) yewtort V. Pender (1884) 
27 Ch. Div. 43, 61. It is ^t 
necessary that the "structural 
identity" of tl,o old window. 
Aould be preserved: A'afwi."! 
ProvimM Pl'tc Cla., Imunmee 
Co V Prudential Aiiarimce Co. 
871; A«dreiP, v. WoiU [1907] 
2 Ch. 600, ihowing ahM that the 


khich is not continuous iu time und (,uaiitity !,.,t tci,- 
'porar.v and of fluctuating amoiat (e). 

It mukos no dillorenoe th., .ho owner of a servient 
tenement may, by the situati and arrangement of the 
buildmgs, bo unablo to prevent a right being acquired in 
re.pflct of the now light otherwise tlmn by obstruttinL- 
the old light also (/). For tlioro is no such thing as ,t 
.pccilie right to obstruct now lighte. A man mav buil.l 
on his own land, and he may build so as to darken anv 
light which IS not ancient (as on the other liand it is 
undoubted law that his neighbour may open li.^ht, 
overlooking his land), but he mu8t do i' so as not to 
interfere with lights in respect of which a right has been 

Disturbing the private franchise of a market or a lorry ■• Xui. 
18 commonly reckoned a species of nuisance in our "Z,'t ' 
books (g). But this classification seems rather to depend '""?' 
on accidento of procedure than on any substantial resem- 
blance between interference with pceuliai rights of this 
kind and such injuries to the enjoyment of common rights 
of property as wo have bocn considering, i'ho quasi- 
proprietary right to a market or ferry is of such a .,a»ure 
tbt the kind of disturbance called "nuisonco" in the old 
Ijooks is the only way in which it can bo violated at all. 
If disturbing a market is a nuisance, an infringement of 
copyright must be a nuisance too, unless the term is to 
be convcntionaUy restricted to the violafon of rights not 
depending on any statute 

I The raae^ies for nuisance are threefold: ibatem.ut, n.^^„ 
I damages, and injunction: of which the first is by the act '" 

«'ch'''Dtv'^ "■ ■"''""*"'" ^""^ " H- ^ ^- 29». 3* I- J. C. P. 
<J) Tapling r. Jona (1865) <y) Bladjst, Comm. iii, 218. 







nf the party aggricvcKl, tho other, by proccM of l..w 
nf tho pariy m?B |^^_^ nuisance is 

Uumago, arc rcnvcrtthk m nU ca« ^^^ 

1 i„.f In miiuv ca.Hc» ore not on acicqunu . 

,,r„vo<l, but in m..nj c^ ;„:„„,,!„„ i, avaikblo lu 

tU„t «o«ia iK. too hazardous a pro.oca...S. 

The abaU.mcnt of obrtruetions to highway,, and tl,. 

I sumo manner, thougU not «' ,. j 

' J- n.\ Tt is dee (led that not only walls, I'"' 

.onunon uiaj ''^ •"';•„ b,. ^ „„„„o„er if it is nni 
u .onimou may 1)0 i-ulb'd do« n Dj a . . ,, 

..o;;;;ved after notice (0 within a r..a,onabk t me . - 

If .umthcr man's tree overhang, my Und^I ma. 
fully cut tho overhanging branchc,(0; ■'"'l '" ''"^^ 
, where tho nuisancx, is m tho nature of a trop • 
:Tcan bo abated without, entering on -oti.r ^ 
the wrong-doer i, not entitled to uotie. (m) . But 

,7.) .Vuiil/i V. £'"■' BrowulMV . 
,1869) L. R. 9 E<1- 2" (""' ™.''' ' 
„f Borklmnnluil Common): \\ il- 
Uam» on Higl.ta of Common, 135. 
(i) Mling down tho house 
without notlrc vhilo thero arc 
ncoplo in it is n trespass: Ear« 
y FiI:iflH-« (18W) 8 Q. B. 757, 
In, J. Q. B. 239; 70 U K. 
620- Jonn v. Jonca (1862) 1 11. 
IcC 1 31 !'■ J- Et. 506; loUoyr- 
ii,gWrryv. F.(--*»»'« '•'*'■ "°.""' 
doubt. The case of a nmn pulling 
\down buildinga wrongfully 

or„t„d on hi. oisn l»n.l :s dif- 
ferent: ib.: Burlm, y. •" 

fi850) 11 Q- n- «»<• '■' '■■ ■' 

(J. D. 291, 75 U. R- Of'-- 

(it) i)»l-i,. V. Wm.aM (IS-. ' 
,0 Q. B. 516, 20 L. J- ^ '; 
330: op. Lane v. C«i'-";' I'"'' 
3Ch. 411- , „ „. 

(0 .V»rr« V. B«hn: 1 It"!'; 
Rep. 393, per Croke; /;■'»"' 
V. 'vrf«» (1823) 2 11- ->^ I ■ 5" 

3 Ch. 1, 63 L. J. Ch. 570. Tl» 



>■'"-",. „ n„ tl„. «,«n«.,l«..» ,„v„ .,.,„.„.„,„. ,„ „„ght 
ln-.l f» U. «or.H.,l aM,l ,v,,„i,.,.,| ,„ „!,„,. u |„„„„|r(„) 

•^'"''' '""" ' "•'■"'"'• """V .,., ,1,:. U,l .0 al«U. th. 

.M"».M„.o ,„„v Ik. ,j„„i,i,„|; |,„t it i, „ |„„.„,j„„^ ,^^^,„ 

"- K.»t lor „ „,„., ,I,M» to t„k,. 11.,. Inv in.o l,i, „„,, l,a„c|. 

' '"""''"■■"^'■"""'il"'M-Mo,„. il-,.,,, l„„Ki,„^|., 

1" th- ,.,«. of almlm,- m,i, » u, « ,;^ ^^ ^^„„ 

..0 !.■...» not HtWcll^. .„.,™s,.n- uiUi« U..' , .u-roaclnnont i» 

l'l"-No„ of >.i,H„ to 1„. tri,.,l, ,l„. „,„.,. .vM^onal,!.. ,0.™ i, 

-■> .MV. ,.„tK,. ,„ . Tl„. .v,„„. ..,,1:. KP.„,,, o„ !„,■ |„ ,„ 

1« upplicablo f, tho ol«tr„, tioM of a ri^H of wav \, to 
tiK. ..xt.nt uf tl>,. riKl... ■•„l„..,v a IV.uv 1 . b<^,. ,,„t^ 
upon ,1, intlo»inK and »o|,u,ati. part, of that 
'""i"."-. from the residue, „„d therohv int-rferin., «ith 
ll'i' n^ln,. of the eo.nmouois, the kttrr are „„, hv law 
r>Mr,Mned ,« the exercise, of those rights to pulling down 
- "inch ot that fence as it ma.; bo nocossurv for them to 
remove for the pnn««o of enuhli,,. their cattle to en(«r 
and eed upon tho residue of the eomn.on, hut tl.ev are 
..ntttled to consider the whole of that fence so erect, d'upon 
the eommon a nuisanc, arid to «>mo,e it accordingly ' Yp> 
A pubhe loc^l authority haying the soil of a highwa, or 
tlie l,ke yested in if hy statute has as incident to it, es'tate 


""■'■'""'8"ik: "f branchc. i. not 
™ "''"■' 'respaia, p„ I.indlcy 
L .1. urn] 3 Ch. at p. 11. I, 

H a wi»o precaution to give 

notic,.. per Lopf, «„<! Kov L. JJ. 

^" ''"■'"'"«' «t the C. A. was 

•iffirmoJinlt. I,. [189,5] A C I 

m L. J CI,. 205 • • 

(» ( Tl,i, ha, alway, b^„ „^j^^. 

"twd t„ !„, (ho law, a„j ,„„, j^ 

, , ■ " >'""■•" 'rom tho dortrinc- 

■ '^".A;-,itr note \^ij. 

r— T. 

(»; Por Jaraes L. J., C'o,,™;.- 
•h,fr, of Sf,npr, v. Wo..,. 
(1872) L. B. 7 Ch. at p. 4W. 

(?) Eayloy J. in Arlelt v. 
£«;« (.827) 7 D. 4; c. 346, 3«2 
31 R. R. 2U, 21», and oarlipr 
authorities thoro citi-d, Tho first 
is 15 Hon. VII. 10, pi. 18. Thoro 
is a diversity where tho fenre 
proventinR aere«a to the common 
is not on the common itself: iiUL 

F 1 




ot omia* 


the common-law righU of an individual l^^" .'"/^^"l] 
obstruction, or cnor<«chme„t«, and the -~ 
special statutory power., if any, doe, not derogate Iron, 
those right* (9) ■ 

It is doubtful whether there is any private right ,0 
abate a nuisance consisting only in omission ««<'Pt;;h™ 
thepersonaggrievedcandoitwithout leaving h.B own ten..- 

l:t : resptt of which he suffers, and perhaps .„ 
les of urgency such as to make the act necessary to tb„ 
Tmediate'^^fTty of life or property. It rs more U.a„ 
doubtfulwhethersucharight.if it exists, eaii3"strfye„to^ 
inTon land for the purpose of construotmg permanent 
works (r). " Nuisances by an act of co«BUSSion are ,...,- 
„,itted in defiance of those whom such nuisances .njurc, 
Tnd the injured paxty may abate them ^utksut no ....... 

I person who committed them; but there rs nfi-doud 
le which sanctions the abatement by - -drvdu^ 
•„„;.^ees from o«8.ion. e;^pt that of cu^Ung 
■branches of trees which overhang a pubhc road, or_ h 
'nrivate property of the person who cuts them. . . ■ iH^ 
L cur 1; of^ivos and property may sometime, require . 
rfdy^a remedy as not to aUow time to call on the p r,.. 
Kose property the mischief ha. arisen reme 3 t 
tchcJesLindividual would bo justificdinj^..^ 
^isanae from omission without notice. In aU other ca» - 
r^rLisanees persons should not take ' « ^ - 
their own hands, but follow the advice of Lord llal>. ^d 
appeal to a court of justice" (8). 

In every case the party taking on himself to .uviu 

(,) B,yn»«. V. <"'"» f ^'--'^ '";f ntt J. iu &-/ .' i«- 

council 0/J77'' tf°,V. ii:,.JW«..C1823)il>.'^C. 

Q. B. 604, 60 L. J- «■/• *""^ Jt, 311, 26 K. K- 370. 

(r) Campbell Dan> v. i'"!"' " P 
[1901] i Ch. 618. 70 L. J. Ch. 

nuisance must avoid doing any unnecessary damage a. 
Thus It 18 kwful to remove a gato or barrier which 

■^yond wha ,s necessary for the purpose of removing 
. And where a structure, say a dam or weir across I 
stream, .s .„ part lawful and in part unlawful, a part, 
abating that which is unlawful cannot fustify iTt L 
Iference the rest. Ho must distinguish them at h s 
l-nl(t). But this does not mcu, that the wron.-d«. 
- always entitled to have a nuisance abated L the 
manner most convenient to hi„,self . The conve„i.„a. 
cf mnocent third persons or of the public „,av also be 1 
■4uest,o„ And the abator cannot justify domg harm 
-nnocen persons which he m.ght have avoided I„ "eh 
a case therefore, it may b. necessary and proper 
abate, the nuisance m a manner n.oro onerous to the 
wreog^doer ,'«). P-tically the remedy of aKatemen 
now m use only as to right, of common (as we We 
ahoady hinted), rights of way, and sometime righ 
«ter; and even in those it „„ght never to I used 
without good advisement. 

nd the assize of nuisance (.r). But these were cumbrous 
nd tedious remedies, and, like tho other forms TZ 

■ "tiolishedfy), the remedies by action on fiie ^ 


(") «»J<T(. V. lt„,„ (18^5, j.j^ 

"■ t" K- 1 Ex. 82, 89. 

Wf'. -v. B. mil., 183 1.; 


P F 2 

Bairn; ea. 9 Co. Bep. 

Blackst. Coram, iji. 221. 

ly) Sm note (,\) to ft«,„i, 
rfo-Ti's m. 5 Co, Rep. 100 4, in ed. 
Thomas i: Fra^ier, 1826. 



at Uw and by injunction in the Court of Cha^ccv havin. 
superseded them. 

There is not much to bo said o£ the ro.uedy in damag,. 
as applicable to this particular class ot wrongs i-c- 
Uten! in a proved nuisance is stated to be a just cauM- 
t g ving exemplary damages (.). There >s a place lor 
„„Xl damages in cases where the nuisance eons. ^ 
meZ in the obstruction o£ a right o£ legal enjoym.,,,. 
Tc as a right of common, d.. not .rus. <.n 
p ifio barm or loss to the plaintifi. At common la. 
damages could not be awarded for any mjury re«,v.a 
cm the continuance of a nuisance since the commen. - 
ment of the action; for this was a new «.use o «c 
for which damages might be separately reeovcr^l 1 
under the present procedure damages in inspect ot „ 
lunuing 'cause of action are assessed down to the da.,- 
of the assessment (a). 

(:) Blatk«t. Comm. lii- 220. 
(») Bii'.e> ot tho Supreme Court, 
1883, Ord. 36, r. 68 (no. 482). 
This docs not agcct tho genoral 
principle.! of 1«" M torontmumst 
injury, >«e Jent. v. Vi'cunt 
dilL [1897] 1 Ch. 694, 66 
L J. Ch. 33S. The like power 
had already been cierciaed by the 
Court (see mt: v. Hobton (1880) 
,4 Ch 1). 542, 557) when 
damaftes were given in addition 
to or in substitution for an in- 
junction under Lord Cairns' Act, 
21 ,t 22 Vict. o. 27. This Act 
1, now repealed by tho Statute 
Law Revision and Civil Procedure 
the power conferred by it st.U 
eiUt, (whether by forr- of th- 
Judicaturo Acts or of the savins- 

clause in the Act of 1883), and .- 
applicable in suth actions as for- 
marly would have been Chancery 
suits for an injunction; and thi 
result may be to dispense w,tl, 
statutory requirements as to 
notice of action, 4:c. which would 
not have applied to such »uil>: 
Chapman v. AucklamI I «'»» 
(1889) 23 Q. B. Div. 291. 209, 
300, 58 L. J. Q. B. 501. S-« 
per Bagnallay L. J. m ;''"""' 
Collm- (1884, 28 Ch. U.v. U». 
107, commented on m "» «■ 
[1906] 1 Ch. at pp. 73.>, "»■ 
The Act did not conlVt «ny 
power to give damapcs w ion- 
no actionable wrong ha.1 l" 

dono,, ii» * 

of llKTPly 

threatened injury: l)rr:if\^^^ |- 
Peruvian Guam Co. ^s^J^ '" 



The m08t efficient and flexible remedy is that of„> 
injunction. Under this form the Court can prevent """"■ 
that from being done which, if done, would cause a 
liuisance; it can command the destruction of buildings (b , 
pr the cessation of works (c) which violate a neighbour's 
rights; where there is a disputed question of right 
between the parties, it can suspend the operations com- 
plained of until tliat question is finally decided (d); and 
its orders may be either absolute or conditional upon the 
fulfilment by either or both of the parties of such under- 
takings as appear just in the particular case(e). 

It 18 a matter of common learning and practice that an 
injunction is not, like damages, a remedy (as it is said) 
ex dehito iustitiae. Whether it shall be granted or not 

Ch. Div. 316, 333, 342. Nor does 
the jurisdiction to award damages 
imply discretion to refuse un in- 
junction in cases, especially of 
tontinuing nuisance, wliero the 
plaintiff is entitled to that remedy 
under the settled principles of 
equity: Shclfer v. Citt/ of 
London Electrh Lightinf/ Co. 
<-Vo. 1) [1893] 1 Ch. 287, 64 
L. J. Ch. 216, C. A. 

(») E.g. Kelk v. Pciii-aon 
(1871) L. R. 6 Ui. S09. The 
order of the Court is now ex- 
pressed in direct nltirmative 
terms: Jackson v. Xormandy 
Irick Co. [1899] 1 Ch. 438, 68 
I- J. Ch. 407, C. A., SCO re- 
porter's note [1899] 1 Ch. at 
p. 439. 

(c) The form of order does not 
go to prohibit the carrying on of 
such and such operations abso- 
lately, but "so aa to cause a 
nuisance to the plaintiff," or like 
miii: ae, lingwood v. Hlow- 

markrl Co. (1865) L. Li. 1 Eq. 
77, 336, and other precedents in 
Seton, Pt. II. ch. 5, s. 5; cp. 
Fteminff v. Jiielui> (1886) 11 
.\pp. Ca. (Sc.) 686. 

(rf) £ven a mandatory injunc- 
tion may bo granted in aa ex- 
trer.c case, at an interlocutory 
aiage: where, after notice of 
motion, and before the hearing, 
the defendant had rapidly run up 
tlie wail complained of, lie was 
ordered to pull it down without 
regard to the general merits: 
Daniel V. ferr/iison [1891] 2 Ch. 
27, C. A. 

(f) Thus where the complaint 
was of special damage or danger 
from something alleged to be a 
public nuisance, an interloeutorv 
injunction hus been granted on 
the terms of the plaintiff bring- 
ing an indictment: Jlrphinn v. 
Lordan (1865) 2 If. ,k M. 345, 
352, 34 L. .1. Ch. 293. 




in a given ca.e is in the judioid discretion of the Court, 
now guided by principles which become pretty well 
eettlod In order to obtain an injunction it mus b, 
Tho^m that the injury compkined of as present o, 
impending is such as by the reason of its gravity, or ,t- 
;L^I chaxacter, or both, cannot be adequat. y eoni- 
Jensated in damages (f). The injury must be e t 
Lparabloorcontinuous {g). This remedy is therefore no. 

appropriate for damage which is -/'" ™'"-/ J.7 o. 
and intermittent (ft), or is accidental and occasional (,, o, 
for an interference with kgal rights which is triflin, .,, 
amount and effect (fc). But the prosj^ct of mat.™! 
Bnjurv, which if completed, would be ground fo s, - 
Itantial damages, is generally enough to entitle th,- 
plaintiff to ".a injunction (J) . 

Apprehension of future mischief from something .n 
(itself lawful and capable of being done without .rea .,., 

a nuisance ^ no ground for an injunction {m,. I 
' mu , if no actual damage is proved, be proof of iminiu u 

da^g^r. and there must ako be proof that the approhen-Icd 

(/) Cooic V. Forha, t- B. 5 
Kq. 166, 173 (Page-Wood V.-C. 
1867); A.-G. V. Sheffield, ie. Co. 
(next note but onfc). 

(7) Page Wood L. 3; L- K- * 
Ch. at p. 81. 

(*) A.-a. V. Sheffield Gat 
Comumen- Co. (1863) 3 D. M. 
(}. 304, 22 L. J. Ch. 811, »8 
R, H. 151 (breaking up streela to 
lay gas pipes), followed by A.-O. 
V. Cambridge Comumera' Oai Co. 
(1868) L. R. 4 Ch. 71, 38 L. J. 
Ch. 94. 

(i) Cooke V. Forhei (1867) 
T,. B. 6 Eq. 166 (escape ot fumes 
from works where the precautions 
used wore shown to bo as a rule 

(t) Ooimt V. Fynnci/ (18 
L. K. 8 Ch. 8, 42 L. J. Ch. IK 
(case of nuisance from noi« 
broke down, slight obstruition t.. 
ancient light held no ground for 
injunction). Cp. I.laudml«o 
Urban JJittriet ^oimcil v. W «oi> 
[1899] 2 Ch. 705, 68 L. J. Cl>. 
623, a case ot alleged i>uUii 

(/) Martin v. Prier PS'*! 
Ch. 276, 63 L. J. Ch. 209. C. .\. 
(m) See the cases reviewcil bv 
Pearson J., Flelcher v. Itcakf 
(1885) 28 Ch. D. 688, 51 L^ •' 
Ch. 424, and see 4^-Jj. >. ""'^ 
poro(io» ot_UaVh>ttrr (18M| - 

ctTm; M L- J- ^^- *'•"■ 


damage will, if it comes, be vorj- substantial" (n). But 
where a nuisance is shown to exist, all the probable con- 
sequences are taken into account in determining whether 
the injury is serious within the meaning of the rule on 
which the Court acts (o) . But there must bo substantial 
injury in view to begin with. The following i)a8sage« 
from a judgment of the kte Lord Justice James will be 
found instructive on this point: — 

" In this case the Master of tlie Kolls has dismissed with 
costs the bill of the plaintiff. 

"The bill, in substance, sought by a mandatory in- 
junction to prevent the defendants, who are a great 
colliery company, from Ci-ceting or working any coke ovens 
or other ovens to the n-..sance of the plaintiff, the nuisance 
alleged being from smoke and deleterious vapours. 

" The Master of tlie Rolls thought it right to lay down 
what he conceived to be the principle of law applicable to a 
case of this kind, which principle ho found expressed in the 
case of St. Helen's Smelting Company v. Tipping (p), 
in which Mr. Justice Mellor gave a very elaborate charge 
to the jury, which was afterwards the subject of very 
eLiboratc discussion and consideration in the House of 
Lords. The Master of the Rolls derived from that case 
this principle: that in any case of this kind where the 
plamtiff was seeking to interfere with a groat work carried 
on, so far as the work itself is concerned, in the normal 
and usual manner, the plaintiff must show substantial, or, 
as the Master of the Rolls expressed it, 'visible' damage. 
The term ' visible ' was very much quarrelled with h-fore 


l») 28 Cli. U. at p. 098. \ 
premuturc actiiin of tliis kind may 
be dismissed without prcjudici! t<i 
future proceedingB in the event 
of actual nuisance or imminent 
danger: it/. 704. 

(o) fi'oltlsiiiid V. Timhndfff 
It'clh Imptovritii'ul Ci^mmra. 
(1866) L. R. 1 Cii. 349. 3,-.«, 35 
L. J. Ch. 382. 

(p) II 11. L. C. 642 0865). 




„, a, not being unuvato in point of law^ It -^'^ ^tato,! 
It the .cd utd in the j ad,™ont of the Lorf Wo^^ 
.as ' sensible; I -lo not think that t^- " J-' ^ \ ^. 
ence between the two expre.s,ons. When th Masto 
the BoUs said that the damage must bo visible, it ap k .. 
to me that he was quite right; and as I undei,tana tl. 
proTositicn. it amounts to this, .hat, although when .0,. 
iroe establish the tact of actual substantial damage, t , 
■;" e right and legitimate to have ..ourse to .cent, .,■ 
evidence as to the causes of that damage, s ill, 1 >ou a„, 
obUged to start with scientific evideneo, sue 1 as t lie .nic ,- 
scope of the naturalist, or the tests of the chemist, io .1,. 
puToses of establishing the damage itself, that .1 .... 
wiU not suffice. The damage must be such as can b. sl,„u u 
bv a plain witness to a plain common ]uryman. 

••The damage must aUo be substantial, and 1 nuH 
be in my view, actual; that is to say, the Court hu.. n, 
de'aling with questions of this kind, no right to .akc „.„. 
account contingent, prosp-.tivc, ";-7'- f "»f ', , 
,„uld illustrate this by analogy. The law does not 1, U 
notice of the impercoptibb aeeretions to a river b«k. 
or .0 the sea-shore, altliough after the lapse of ycHir. . .■> 
become perfectly measurable and ascertainable; a,K 1 
iTthe eourse of nature the thing itself is so imperc.pti..U^ 
so slow, and so gradual as to require a great lap* 

senses of mankind, the law d sregards that K 1 " 

perceptible operation. So, if it were made out th . ^v . 
Minute a millionth of a grain of poison were absoib 
tree or a miUionth of a grain of dust depositol ,.0.. . 
t r that wouM not aKord a ground for mtorl.;™. ^ 
although after the lapse of a million minuter tic, rains 
poison or the grains of dust couU bo easily detoc . 
" It would have been wrong, as it seems to me, toi - 



Couit in tlie reign of Henry VI. to liiivc interfered witli 
the further use of sen coal in London, htcause it had 
been aseertained to their satisfai^tion, or predicted to 
their satisfaction, that by the reign of Quosu Victoria 
botli Avhito und red roses w ould have cfased to bloom in 
the Temple tiardens. If some picturesque liaven opens 
(its arms to invite the coniniercc of the worUI, it is not 
for this Court to forbid the embrace, although the fruit 
of it shoiiki bo tlie sights, and sounds, and smells of a. 
common seaport and shipbuilding town, which would 
drive the Dryads and their masters from th'ir ancient 

■' With respect to this purticuUir property bid'orc us, I 
observe that the defendants liavc established themselves 
on a peninsula which extends fur into tlie lirart of the 
ornamental and picturesque grounds of tho jilaintilf . If, 
instead of erecting coke ovens at that spot, they liad been 
minded, us apparently some persons in the neighbourhood 
on the other side have done, to import ironstone, and to 
erect smelting furnaces, forges, and mills, and liad lilled 
the -whole of the peninsula with a mining and manufactur- 
ing village, with becrshops, and pig-styes, and dog- 
kenncls, which would have utterly destroyed tlie beauty 
and the amenity of the plaintiff's ground, this Court could 
not, in my judgment, have interfered. A man to whom 
Providence has given an estate, under which there are 
veins of coal worth perhaps hundreds or thousarids of 
pounds per acre, must take tlio gift with the consequences 
land concomitants of the mineral wealth in which he is a 
participant" (q). 

It is ;jst a necessary condition of obtaining an injunction 
to show matfitifll specific damage. Cogtinnnua intnrfnrenen 

. (5) James L. J., Xgilviii v. (1874) L. R. 
Xmh _ llmunDrti. -.Oeal Co. p. 70S. 

9 Ch. 709, St 



or expeuw 
of abftto* 
ment no 


entitled to 
due for 


jwith a legal right i8,4JBftW« «»P»feia »* proaucing 
"material damage is enough (r). 

The dilUoulty or expense which the party lUbla for a 
nuisance may have to incur in removing it makes no 
difference to his liability any more than a debtors bcm^- 
unable to pay makes default in payment the less a breach 
of contract. And this principle applies not only to tho 
right in itself, but to the remedy by injunction. Th.' 
Court will use a discretion in granting reasonable time for 
the execution of its orders, or extending that limo after- 
wards on cause shown. But where an injunction is tho 
only adequate remedy for the plaintiff, tho trouble anJ 
expense to which the defendant may bo put in obcyin- the 
order of the Court are iu themselves no reason for 
witliholding it (s) . 

A= to the person entitled to sue for a nuimncc: .s 
tog.irds interference with the actual enjoyment of pro- 
perty, onlv tho tenant in possession («) can sue; but tho 
landlord or reversioner can sue if the injury is of such a 
nature as to affect his estate, say by permanent depreciation 
of the property, or by sotting up an adverse claim of 
right («). A lessee who has underlet cannot sue alone in 
respect of a temporary nuisance, though he may properly 
sue as co-plaintiff with the actual occupier (i) . A nuisance 

(r) Clowes v. Staffordshire 
Potteries Waterworks Co. (187ri> 
h. n. 8 Cli. 125, 142, 42 L. J. 
Ch. 107; cp. Penniri'jton v. 
Jlrinsov Hall Coal Co. (1877) .5 
Ch. D. 769, 46 L. J. Ch. 773, 
SkeltoLX'-V'tM .of. i,»f ''»» ^'"' 
trio Lighting Co. [1895] I Ch. 
287, 64 L. J. Ch. 216, C. A. 

, Cohtei) ilil'l' 
(1868) L. U 1 

(») A.-U. V 
Lunatic Asylun 
Ch. 146. 

(() Not a person who is there 

merely aa a servant or liirnsco: 

Malone v. Lashey [1907] 2 K. B. 

141, 76 L. J. K. B. 1134, C. .1. 

(u) Sec Dicey on Partiej, 310. 

(») Jones V. Chajmell (1875) 


caused by the improper use of a highway, suoh as keeping 
curto and vans standing an unreasonable time, is not one 
for which a reversioner can sue; for ho suffers no prosonl 
damage, and, inasmuch as no kngth of time will justify a 
public nuisance, he is in no danger of an adverse right 
being established (j/). 

The reversioner cannot sue in respect of a, nuisance in 
lite nature temporary, suoh as noiso and smoke, even if 
/the nuisance drives away his tenants (i), or by reason 
thereof he can got only a reduced rent on the renewal of 
the tenancy (a). "Since in order to give a reversioner 
iin action of this kind, there must be some injury done to 
the inheritance, the necessity is involved of the injury 
lieing of a permanent character" (6). But as a niattiT 
of pleading it is sufficient for the reversioner to allege a 
state of things which is capable of being permaji<ntly 
injurious (c). 

As to liability: The person primarily liable for a Partio. 
nuisance is he who actually creates it, whether on his "''"''• 
own land or noi{d). The owner or occupier of land on. 
which a nuisance is created, Hjjujgh not by himself or by 
his servants, may also bo liable in certain conditions. If 
a man lets a house or land with a nuisance on it, he as 
well as the lessee is answerable for the continuance 

L. R. 20 Eij. 539, 44 L. J. Ch. 
1(58, which also diacredita the Bup- 
i'lisition that a weekly tenant 
cannot sae, 

(») Mott V. Shoolbred (1875) 
L. E. 20 Eq. 22, 44 L. J. Ch. 

(=) Simpson V. Savage (1856) 
1 C. B. N. S. 347, 26 L. J. C. P. 
JO, 107 E. B. 688. 

(") Vvmfori V. Oxford, fc. 

II. Co. (1856) 1 n. i N. 34, 25 
L. J. Ei. 265, 108 B. E. 439. 

(4) Per Cur. 1 C. B. N. S. at 
p. 361, 107 E. E. 698. 

(c) MetropoUtan Aitociatitm 
T. Fetch (1858) 5 C. B. N. S. 
604, 27 L. J. C. P. 330, 116 B. 
B. 740. 

(rf) Sop Thomp$on v. Gibson 
(1841) 7 M. ft W. 4.56, 66 B. B. 

t I 




444 HUiaAMCE. 

thereof (e), if it i« caused by the omiMion of ropaiis 
which ai betwoon hinuclf and the tenant ho ia bound 
to do (e), but not othorwiso (/). If the landlord ha* noi 
agreed to repair, he ia not liable for dofocta of repaji 
happening during the tenancy, oven if he habituallv 
lookB to the repairs in fact (3). It seema the belt- 1 
opinion that where the tenant ia bound to repair, th 
leesor's knowledge, at the time of letting, of the state ..1 
the property demised makes no difference, and tliat oiilv 
aomething amounting to an authority to continue lli. 
nuisance will make him liable (/) . 

Again, an occujier who by licence (not parting iviili 
the possession) authorizes the doing on his land of sr - 
thing whereby a nuisance is created is liable {h). lint 1 
lemor is not liable merely because lie has demised to a 
tenant something capable of being so used as to cieaU' ;i 
nuisance, and the tenant liaa «o used it(»). N'or is -m 

(.) Todd V. Fligit (1860) 
» C. B. N. S. 377, 30 L. 
J. C. v. -21, 127 n. H- 
684. The exteiuiun of tliU in 
Oandy T. JuHer (1864) 5 B. t 
S. 78, 33 L. J. Q. B. 151, by 
treating the landlord's passive 
continuance of a yearly tenancy 
al equivalent to a reletting, so as 
to make him liable for a nuisance 
created since the original demise, 
ia inconsistent with the later 
authorities cited below: and in 
that case a judgment reversing 
the decision was actually pre- 
pared for delivery in the Ex. Ch., 
but the plaintiff meanwhile 
agreed to a stet proceaiut on the 
recommendation of the Court: 
see 6 B. & 3. 485, and the teit of 
the undelivered judgment in 9 B. 
ft S. 15. How far this applies 
to a weekly tenancy, g^'Sre: see 

Bowen v. AtKlcrton [1894] 1 W- 
B. 164. 

7) PrHty V. Birkmure (1873) 
L. R. 8 C. P. 401; Otvimitlt v. 
£«»ier (1875) L. B. 10 C. 1'. 

fff') yelion v. Lirrif'u! 
Brnttrs f". (1877) 2 C. P. U. 
311, 46 L. J. C. P. liio; .p 
Kich V. BimlcrfifM (1817) 1 I'. 
II. 783, 16 I.. J. L'. 1' 
273, 72 U. H. "lli. ^i"! 
see LaM v. Ccx [1897] 1 « B- 
415, 66 L. J. <!■ B. 193. C A., 
which, however, rotlier belontr!* t' 
the head of special duties con- 
sidered in Ch. XII. bflow. 

(A) Jfltite V. Jamysott llH74i 
L. B. 18 Eq. 303. 

to Stoh V. Basteifidil i 1(117 1 
4 O. B. 783, 16 L. J. C. I'. i73. 
72 R. B. 716. 


owner not in paa«mion bound to take any active itepa to 
roniovo a nuiMnco which hai. been ercatod on his Und 
without his authority and ogainst his will (k). 

If one who luis erected a nuiwnce on his land conveys 
thi' land to a purchaser who continues the uisanoe, the 
vendor remains liable (?), and the purfhawr is also liable 
if on request ho docs not reraovo it (m). 

*) Sttj-dtf V. Mttnclientr,- itu(t 
HkeffitU K. Co. (1M9) L. B. 4 
V. P. 1>8, 38 L. J. C. P. 1J3, 
where the dofendenti had glren 
the plilntiS licence to abate the 

nuiiance hinuelf lo fsr as they 
were coneerned. 

(0 KomiitU v. Prior (1701) 12 
Mod. «3I. 

(m) Penruddoek'i ea. 5 Co 
nep. 101 a. 

! ! 







l.—T). General Cnnception. 

OmWon FoH act» and their r.iults (withiu the limits expresse.l 
limited ^^ ^^ ^^^ „ ^^j^jgi ^j probable consequences, " un.l 
"'"rad"f discussed ia a foregoing chapter, and subject to th. 
liability, grounds of justificution and excuse which have nlso !«' ii 
discussed) the aour is, generally speaking, hold answor- 
ablo by law. For mere omission a man is not, general! v 
speaking, held answerable. Not that tho consequences 
or the moral gravity of an omission are necessarily l"ss. 
One who refrains from stirring to help another muy bi', 
according to the circumstances, a man of common thouijh 
no more than common good will and courage, a fonl, a, 
churl, a coward, or little better than a murderer. liut, 
unlara he is under some specific duty of action, lii< 
omission will not in any case bo either an oflcnco or a 
civil wrong. The law docs not and cannot undertike 
to muke men render active service to their nei^'liliouft 
at all times when a good or a bravo man would do so [h, 
Some already existing relation of duty must lie t'tjb- 

(a) Those who seek the fullest 
information and dhcusaion on tho 
subject of thii chapter may find 
it in the late Mr. Thomas Beven's 
exhaustive and fcho!arly mono- 
graph on " Negligence in Law," 
3rd ed. London, 1908, 2 vols. 

(6) See Note M. to the Indian 
Penal Code as originally framed 
.y the Commissioners. ^<'I 
.'ittcmpts of tills Iiind haic bci-n 
made in oje or two Contini'otal 
proposals for the improvemint of 
criminal law. 



1.-W, which n,l.tio„ will l« f„u„,l i„ ,„„.t on3o,. though 
not ... .1, to dop,,„,l on a fon.«o,„„ volu,.U.rv ...t of tho 
|...r y hold .ahl„. ,r„ ,va. „„, ;.. „,„ „„, i„,;^^ ^^^^^ 
i<> do anytlnng: at all; hut by .omo .n<l..ponde„t .uotion 
of h., own he h«, given ho.t«^-n,, .o to ,p™k, to tho hw 
Thu. I u,u not coinpcllod to boa puront; but if I ,.„. on. 
I muHt maintain my .hildrcn. I am not comp,.|lod to 
.raploy m^rvanU; but if I do, I must answer for their 
tonduct in tho course of their employment. The widest 
rule of th.a kind i, that which i, developed in the law 
of .Negligence. Ono who enters on tho doing of .„„■. 
thing attended with to tho person, or j.roperlv of 
other, IS held answerable for the use of a certain i„e„,uro 
of ouution to guard against that risk. To name one ot 
the commonest applications, "thoso who go personailv 
or bring property where they know that thev or it mav 
come into coll., ion with the person, or propertv of other; 
Imve by law a duty east upon them to use reasonable cere 
and .skill to avoid such a collision " (<:). The caution that 
IS required i, ,n proportion to tho magnittido an-l fie 
apparent imminence of the risk: and wo shall see that 
for certain coses the policy of the law ha^ been to lav 
down exceptionally strict and deOnito rules. While some 
neb and occupations are more obviously dangerous than 
others, there is hardly any kind of human action that mav 
not, under some circumstances, ho a sourco of some dan<.er 
Thus we amve at tho general rule tliat every ono is bomid o.„„., 
to oxerciso due eare towards his neighbours in his acts and """."< 
conduct or rather omits or falls short of it at his peril- """" - 
he peril, namely, of being liable to make good whatever 
Harm may be a proved consequence of tho default (d) . 

c.^'it^f^oe'""'""'- ' ^''- ,/"> "'■ "" «-" M. B., 

"eaven v. Pnider (1883) U Q. 
B. Div. at p, 507. 






In «omc ca.os this groun* ^^^^'^ same person 
&"^ ,.itU a liability on "oftlurout o£ the samo facts. 

Where a mau -'er^'^'^Xrlnul- according to *■ 
in a rcasouabk and f^-^^^, ,ue ca.e. And *'; 
ei.cumst:u>^ and oPP"''-";^ ,^ jf ,„ it bo, that ho '. 
...... ;» not affected by tho tact, ^_^^^^^^_ ^„,, 

:;:un.t^oes and "PP-'— . if so it bo, that ho . 
duty is not affected ^^^^^J^^ „„aer a contract, and 
„>.tlng for regard, Jn other ^or • ^^^ ^^j,,, „. 

tX liable on the contract W^ ^^^^^^ ^ ,„, 

distinct, except so ^'- ^J^^^^ fact, on- for a. 

pensuted t.'iec »«^7''^, j„ ,,,0 .vron,. H-storualU 
L-ouch of contract and ^>t" .^^^^ .^ ^^.^ ,, 

the liability in tor - "^^ ' ^.^, amt the actron of 
special development of thas ^^^ ^^ ^^, 

assumpsit, aftor-ard, he com ^^^^ .. ^^ ^ „ ,, 

,i„ple contracts, uas brought > ^^^ ^^^.^ ,,^j. „,t, 

pricl my horse -th a jl, J-- _^ „,,,,„,y ,,; tl,r 
upon the case agamst h.m, «.^^^ .^ .^ ^^^^ ^„^y „j ,,, > 
,m;fft <-> do U .«"• • . ■ ^i i^rty and truly - he 
-"^- , " ^r -r ;ptg of the regions of Contra, 
ought" (3). Th-s P ,the.o,a,Ju*.»-«t 

»•"•" ''w°ver»nd=r..oodby 

nentwMl"""^" J |^„ Court 
»,, other men. ^ of *^^^^^ 

"^"'T.C.mK wider role to 

•k.,nlf eomeB under low =1 
CMC itsoll f""- , ,_ ol ocou- 
,„to deBmnp the duty ^^^^ 

r'";^TtheIu<i^"' of Brett 
8»lf "'iZTexhibitthose 

„, the ^«tr*°'B^""- 
founded. And « 

8th ed., and rroi. 
,.. "The History of .\sa " r 

r'": ^Tthe iud^eui of Brett f-'*","; ';,o're" Rro« ■>..' 
^'^^X^X aotionahiene.U.enee. 
rifsuU'tt:! that the di«nt 


and Tort gives rise to troublosome questions which wp 
are not yet ready to discuss. They are dealt with in the 
concluding clmptcr of this book. Meanwhile wo shall 
liave to use for authority and illustration many cases 
where there was a co-existing duty ex contractu, or even 
where the duty actually enforced was of that kind. For 
the obligation of many contracts is, by usage and the 
nature of the case, not to perform something absolutely, 
but to use all reasonable skill and care to perform it. 
Putting aside the responsibilities of common carriers 
and innkeepers, which are peeuliar, we have this state 
of things in most agreements for custody or conveyance, 
a railway company's contract with a passenger for one. 
In such cases a total refusal or failure to perform the 
contract is rare. The kind of breach commonly com- 
plained of is want of due care in the course of performance. 
Now the same facts may admit of being also regarded as 
a wrong apart from the contract, or they may not. But 
in cither case the questions, what was the measure of 
due care as between the defendant and the plaintiff, and 
whether such care was used, have to bo dealt with on the 
same principles. In other words, negligence in perform- 
ing a contract and negligence independent of contract 
create liability in different ways: but the authorities 
that determine for us what is meant by negligence are 
in the main applicable to both. 

The general rule was thus stated by Baron Alderson: 
"Segligcnce-is...Uie omission to do something which a 
reasonable man, guided iipon those considerations which 
niiinarily regulate the conduct of human affairs, would do, 
or doing something which a prudent and reasonable man 
would noLdo " (A) . It was not necessary for him to state, 

rt) Uliilh V. Birmingham at p. 784, 25 L. J. Ex. at 
Wnl,mnrk, Co. (1856) 11 El. p. 213, 105 R. B. 794; adopted 


of Degli- 




1 tn remombsr, that ncglig''n«-' 

but w. l-ve al»uj» 'YrbiUtv mkss the party .)«. 
not be a ground ci ^f^l ^ .,„,,;„„ that hvi... 
eoaduct is in U"-'"'" '» ;^;':" ,/ car.- This, it «ill h- 
„i„ ,.„dcn- tho duty "^^l^.;^^,^ „£ „.i„d, ana 
obsenod, »uys nothing «i tl>o ' J> ^^„^i i,„, j;,. 

,^,,,. ^-'»i- - ^:r Si; not hoe... 
regard, many P' f J^^^" .,^i,^,„,„, but l.xuu.c U. 

tegal purposes .t mp ^^^ ^ ^^,^.^.„,, ,„ „ 
'n *^^"'l .ud^ no need for apology; b. 
peculiar sensu, thcic ^^oul •s-o.rUgonw is ih 
?he bgal *en»o . the natural " ' J^^,; ,iUgou> 

I „ »tato o£ nund (»)■ ^''J ,,„t bunking al.mU. 

-;. not .hat a man ^ '°^^':,,„,. hi, h..haviour .. 
expecting or not, but .^ ___^^ ^__^j,^, 

or .V- not .uch a., .0 >'™-; f ^J,, ,,,„ ,„„..„ t„ 
the given circumstances. bac^, ^^^^ ^^^^.^ 

him, or by the use "^-^''^P^ ^ t^ pb-, come uUo 
r^^roniuno^ledgo is a subordinate on., a. 

by ISrett J. in S,„M v i. 4 

7 II-. It- <■■'■ c"*"" ^■/'• 

■5' C P. at !>■ W-- ""■" l^T^ 
:Xo! cour.c, n.o:u> w.lfu 
„„.L,ion of a a.ty may no b= 
.omcthing .»»'« »•■'"'" """ 
"tfrtarnea and thou,Mf^ 
writer, Hr. John W. Salmond, 
"etorl to ■Ibfu.solsl. negLB-cc 
La.laleot mind from nogl.gcn 
.. M.^ „c„t«l attitude of undae 
indifference "itUr=,l.e»t to o„.. 

„„ndurt and il» comwiu.'""' 
lJurln'™lenfo,3rdcd. I'JIMT 

opposite not of dil.goncc, Inl c. 
„i-o„Bt..l i..t.M.tion (.V. ■''-■ 
tliink the view given m tl,.. 
Lre comcmc-t and more c- 

<Utcnt »-itli the lansuas>- "t '" 

r^t-itie. ^■'•,«»;--f^:::; 

i„„U repeated m 1." ^ „, 
Tort.," l.p. 21. •", 2..d ed. U 
.dmit. that the ternr . 
common'y net .n an ol.J-t. 

«n«e," and that the I-rart- 

r«a\t is the same. 


regards tho thoorcioal foundation of liability Th. 
question . not .0 „.„,!. what a man of wl^oTdiii. 
wa« required aetualh- thought of on , =""'" 

would h,„-o I^en non-hod b "T""'"' "^ "''"' 

™c reckless omi.«ion to ,,.,. , .•■ ^" "" "t'-emo 

nmv be l,nl,l '''' "*''''' "°'i™ °^ ^'o risk 

iii.u DC iicid, as a matter of r..,.t f„ 

■ntention: or. i„ tl.e tems of B T" " ""■^^''-™"« 

iimn fl,„ Joie^glit and caution of a ijrudenf <i«>"«>t 

min-the averaffo prudent man or „= 1 , 'ary with 

affect to sav ,,1, 1, ' "'"■ '"'"'^^ rather individual 

to say, a reasonable man— standin.. ;„ fi ■ , "bUity- 

man's shoes f/M) T),,' -i "''""""S '" thiv or tliat 

<«3 (m). This Idea so pervade, the „,a.,s of our 


'W,) 3 mng. N. c. 408, 43 
• n. 711, whe,e tl,» dc,„„d„„, 

, '" ''™^. «'"«! that hi, hay- 
stack ,„ likely („ take U™, Jd 

C f 

he would chance it (3 Bing N 
C.^PP. 471, 477; 43 K. B. Tls] 

(m) Compare the Apialololian 

;■« "f .; ;,■■:.,,„ „r .; „,,,.„;„ 

'" delermlninj. the abnlard „f 
moral duty. 

I I 



• i. A rtnlv bv 80int> 

famiUaiity ^i* them. In «> . ^j (,„„„„„ 

!uy and ^--vely — ^^^^^^^^^^ ^^^^^^„ , ,„ ,. 
PU-U8 (n). The "c""";;' ";;^ „j hi- own land, in .uch 
b„ilt u rick o£ hay on t'- ^ J" " „, fi„, and left >t 
, .tato that there «a., o^ d^nt >la .^^ ^^^^^.^^ ^.^ ,^,^, 
there after -P^'^^Vlt fir to buildings -h-h in ta™ 
broke into, and » J ^^^^^,,, ,„.l the 

communicated the hre to the 1 ^^^^ ^^.^^ ^^^_^ .^^^ ,,,,,, 

cottages ^vere -If "»>"'' .- £„, them to eoneider >va.^ 
direetcd "that the question lor „cgligenc* 

Xr the fire W_>^- " Jd 'ffiat ho ..s bound 
on a. part o£ the ^ffj^^^^ „„„ao„ o. a prud,.,. 
to proeeed .vith sueh r^sonah^ „i,eamsta„ees . 

^Z would have --"-^;;* ^, .,„„ the ground that 
^„le£ -o^ta-^, ,„ ^,,iaor, n,,t 
^ jury sho.1 . ha^e W .^ _^^ ^^^^^ i,_ 

whether the 'I'^^-^f^JlTdarcl of ordinary prudono. 
gencewithretoeneetotlestar-d „,itcnon, bat 

! sUndard too u-«^ "'^^^^o the best of hi. judg- 
.hethcr he had ae.ed bon fide ^^ ^^^^^^^ ,, 
ment; if he had, he ought no ^^^^^ ^^^„ j 

-r ""^e "' Tte ^rt^imouay ^^::^ 
intelligence. j-^e , j^at the care of a piuO'n 

to this view. They declared^ ^^ ^^^^^ „ 

n.,n WIS the '-™^*7'^* "'tia down, and the allcg-d 
duty. It had always ^-j'^^ f„„„d no obstacle to 
uni-tainty of the rule had W ^^^ ^^^^ ^^ 
it., application hy3un-^!,;: ^^^. to .ay whether * 
a prudent man. but 

./2w: not tUe hlghe-t incU.- 

,enco,« intern..- -J >;*: 
the average I'tad""'""""' 


he l.ab.hty for nogli^oncc should b, eo-oxfo„»iv; ih tt 
judgment of i„dividual-,vl,i,.h would bo as va iab 
as the length of the foot of each individual-.-.. " 
rather to adhere to the rub which requires in all JoVl 
regard to caution such as a of ordinarv prrnco 
wouk. observe (p). I„ „,, „,,„ ,,„„ ^,„ ^,,^ ? -" "» 
has been enforced :„ the Supren.e Court of Ma Jhus^.t! 
/ ir a mans conduct is such as would U reckless in a 
Iman of ord.nary prudence, it is reckless in him," L! 
he can br>ng h:msolf within son.o broadly defined . 
-pt:on to general rules, tho law delibera^ leave, hi 
persona equat.on or idi<«3„cr,.ios out of ^.ount, a d 
l.oromptor,ly assumes that he h,« a., much eapac v o 
judge and to foresee eo„sc.quenc.s a. a man of ord , m^T 
prudence would have in the same situation " .^^ "'""""^ 

It will be remen,berod that the general duty of diligence r,-,- 
^ncludes the part.culax- duty of competence i^ cases t e" ^^ 

be expected o Imvo. The test is whether the defendant 

t« oqu,red to do rn such a ea,o" (.). This is not an 
2'Pt.™ or extens.on, but a necessary application of the 

!» s of h,s compet.™e, and v.,U not intermeddle (sav 

Urao denary emergency) where he is not ^,) 

11.0 practical result is that the diligence requiLl in the 

(WlindalC. J., 3Bing. X. 
<^- « p. 475, 43 R. B, „t p. 717. 

(?) Commontvralth v Pierce 
(188*) 138 .Ma,s. 165, 52 Am. 
™I>- -'84, per Holmca J. Seo 


■ayifj- J. 

In Juttea 

""'' (182' -' II. .t Aid. at pp. 
84.5-6, 24 . li. 38.5.IJ. 

(!■•) Bayley J., 5 B. i .Ud. at 
p. 840, 24 It. B. 3SU. 
(») Sco p. 28, above. 


, 1 „iU be tttcoiding to urtum 

51'S.Srf Idifforont ,legro.* o. k nds " .^ ,. ^_^j.^^,.,. „, 

tr the use o£ ...eU '^P'*^2«r,>-"i.v that has l-.. <- 

either real or .magma.> d. uk ^^^^.^^_ ^^,^,,_^ „ 

,ttre than i« "npl.od bj t • ^,_^ _^^,, „,„, ,va- 

,hut ate all, if moan^ the abM m 
tary under the eircmnsmnoc. (0- 

gence u 
of mixed 
fact and 


n^- Evidence of XegUgenee. 

„e liave seen, i» the diUs.n'»>-- 

D„e care and -u~- „,^,, ,,,,o„able eompeU.,. 

„£ a reasonable man and me U^ , ^ ,„,„,„ 

in eases ^vhcre ™>"V^^n.. ^^^^^ ^^^_^ ^^,, 

safety. Whether due e- -d ^^ .^^^^^^^^ ^ „ „, 

in a given ease .s, b> the '" f^^^ i„ the -en.- 

,,,, Bnt it is -\X o":Il- and .ithont Unn-. 

„£ being open as a matte ^^^ ^,^.^^^ ^^„ ,. 

Not every one «'- .-«" ^.I^d^f „lt i. thereSy entm. 
,et down to his """l'^;"4;;,i„ damages. The iU 1 
to the ehanee <• ^ .«"' J^'^ ^^ .,y, o£ dettn.lion, b^ 
of inquiry has lumte <! ^^''^ J^,^,^,,, Before the Cou« 
legal prmcirle and 3"d e »! d^c ^^_^_ ^^^^^ _^^,^,^,,„, ,, 

or the jury eun proceed ' V^ ' .^^^ ,,^, ,,„„. ,... 

the pUintiff, the ^ourt nn«t '- „, i„fc,cn. 


((, Miltei"'^''' 

[> ]>. (\: V. An 

. (1870) 91 ^^-S- t8''-^''' 


his li,in,K. In tlic cur.viit foion.sic pl,ra.«(., thwo iim»t 1,. 
CTidone.. of npfrlip.„„.. Tho ,K.c,il[„r lolation of thv 
judge to the jury in our comn.oii linv systnm Im, piveii 
occasion for fra,i.,.at aud miniitf- discussion on Iho 
propriety of l,,ivinp or not IwivinK lor tlic decision of tho 
jury thn f,„ts alh.g,.,i l,y the plnintiir ,,» proof of 
nephgence. Such discussions ,n'o not earrictl on in tho 
manner host littcd to proniofc the el,.ar statement of 
pr.neiplos; it is diflieulf to sum up their results, and nol 
ahvays easy to reeoneilo tlu'ni. 

The tendency of modern rulings of (Jourts of Aj)p<.al 
has been, if not to ,-nh>r«e the province of the jury, to 
arrest th,. process of ..urtailin- it. Some distinct boun- 
daries, however, are established. 

Where there is no contra,! I,.tw<rn ihe parties, the Burt™ „f 
burden of proof is on him who complains of ncffIi<;,.noe. ''"°'- 
He must not only shov that he suffered harm in Juch a 
manner that it migiit be caused by ,be defendant's 
neglig,.nce; l,e must simw that it was so caused, and to 
do this he nmst prove facts inc onsi.slenf with due dili"~nce 
cm the part of the defen.hmt. ■' VCii.^^ tho,ovidcuco given 
iMajUiai^cuiLiiiU^t with tliu uxi.slenio or non-esistonco of 
USsliSOitf. it is not cc>nii».tcnt tu the judge lo leave the 
l l iii Mrr H i..thi;.jui;Y " (")■ 

Xothing can be inlVrred, for from the bare 
iact thai a f(K)l -pu.sseng,a- is knocked clown In a carriage 
in a place- whc-re thc-y lane an equal right to be, or hv'a 
t-ain at a level crossing (t). Those who pass and repass 
cai lre(|uc.„tc.d roads are Imund to use due cai-e. Ih- it on 

I' I William, .J. i„ y/,„„ ./ I,. 78,i. „.„i,,,.„ ,. 

■■»H, -11 I,. J. c. I'. 129: twi.-. (.) «Vfo./;„ V. i. V ,v „• „ 
v^/ (IMO, « (;. B. N. s. ,0.. 1„,, „„t,.. "■ 

•*«. '^9 ].. J. c. p. .33.3. 125 R. 


I I' 


, b,.ck or with carriages; and before one 
foot or on l--"-^; ° I „„,, ...ow wherein care wa, 

wanting. When in „„„„ the ncsUgenco of the 

i. in fault, the one who rehe« .^on tl. n g g ^^^^^^ ^ 

„ther is bound to '«» f ° ^ *,l^,i„„, that a tr.uu 
„„™„.ed, in the absence "^^ ^^\^ ,,„ ,g„i„„ the 
,an over a man more *'"" V;^ .^i,,„ f„non,ly, o, 

• ^ \ Tf the carriage was bomg arivui. 
tram (^). K * /""^^.j, that is unotl>er matter, I 
on the wrong of the ro ' ^^^^ ,^^,.„ „,,t .1 

i,difVerent,agam,^vhreth dee „„,ia„e,l 

, publie ---• "'";,:„ Ihrun-eanreasonabl. 
whether there >sev,dc„eef.onwto 3 ^ ^,^ 

find fat the i-age eomidumod o ^^ ^ ^_^^^ ^^^. 

nuisance («) .ueh a e..h^-.^^_^ of an ambig.ou, 

:S^::-" defective eviden. of negUge,.. 

■will not do. , ,,.1 i,:,.tlf('i fe, liaviiiir 

safely crossed m front ot o ^^^^ 


seen her pass, and then .^ ^.^^^, ,„ 

conductor, so that he d.d not - - ^^ ^^.^ „„ ,,, 

pull up and avo.d m.sch.ef. The o ^^^ ^^ 


■1 1 !-■ T rntitin V. Hood, 
(y) Erie t . J.,^"""" 

note («'> above. 
") Lord IW-bury, 12 App. 

Ca. at p. -IB. 

(a1 Femw v. Core # <-"• 
[1895] 1 Q. B. 199, 64 L. J- 
Q B 238 (plaintiB, a g.rl n»t 

i, by spikM on top of low ^M, 
\^i\L ><■'•' dimbing on the 

„all shortly before, no ditict . 

dcnco of aecident, eounty oou« 

jury found spites a nu.sanc. .» 

a/y canned hy them, no con.nb- 

tory negligence-, judgment to. 

plaintiH afiirmod). 

%6) (1860) 8 C. B. V S * ■ 

29 L. J. C. P. 333, 125 K. H 

786. . „, ;| 

(■„) It would be eonverocnt u 


on tho plaintiff's o«„ showing, had not done anythinsr 
inconsistent with duo caro. Thorn was no proof that 
W.e driver turned round to spoak to tho conductor other- 
wise than for a lawful or „««sary purpose, or had anv 
reason to apprehend that somehody would run under 
tho horses- feet at that partieukr moment. Again if 
a horse Unng ridden (d) or driven (e) in an ordinary 
manner runs away without apparent cause, and in spite 
of the riders or driver's efforts on the footwav 
and there does damage, this is not evidence of ncc-U-encc" 
The plaintiff ought to show positively want ofeare or 
want of skill, or that the owner or person in charge of 
the horse knew it to be unmanageable. "To hold that 
jtho mere fact of a horse bolting is per sc evidence of 
negligence would be mere reckless guess-work " (/) 

Sometimes it is soid that the burden of proof is'on the 
plaintiff to show that ho was himself using due earo, and 
It has been attempted to make this supposed principle a 
guide to the result to bo arrived at in eo^es whei-o the 
defence of contributory negligence is set up. This view 
IS accepted in several American jurisdictions (,7), b„t in 
U.0 presont writer's opinion is unsound. The current of 
i-nglish authority is against it, and it has been distinctly 
rejected in tho House of Lords (h). What we consider 
to be the true view of contributory negligence will !„ 
presently explained. 


one could in theio runnini- down 
"MM on land person',, the 
vehicle, like a ship. 

{d) Hnmmrck v. White (1862) 
» 0. B. >r. s. 588, 31 L. J 
<-'• P. 129. 

(e) .trasonO-^ MuBlaa (1880) 
6 «. B. D. 145, 50 L. J. Q. B. 
289, wlicre it was unsuooossfuUy 
•llemptod to shake the authority 
«t Ilanimadi V. Whilt. The cases 

relied on tor that purpoie liclont- 
to a special c\am. 

(/I Lindley J., 6 Q. B. D. at 
p. 153. 

(?) i'.?., M,„i,h; V. Lmiie 
(1869) 101 llass. 455. 

(*) Wakelin V. T.. ^ S. W. H 
Co- (1886) 12 App. Ca. 41, 47, 
51, 56 L. J. Q. B. 229, per Lord 
Watson and Lord Fitzgerald. 


or under- 


.h„«W «-.•.") wl-n ^.r . ._^^^ _^ __.,. „„ ^,„, 

out .V wntrttct. A coucU J. ;„ „,« cou.l. 

d«n.uH. th- .-" ■- "P-'- :' ;jr, vr.l.a. tU,. dnvc, 

o£ the couch. ..."£""'-,.';';'„„„,^ iov «u"- -'' 


, When a .aihvuy t.«... .uu- ""'^j ^rriapes, ov hotl, 
•.„,bo.hper™un™j -,-_^^^^„,^„^^ 

i control, those huts'. >t " l- nPElilK'n"'*.^ ■ 

In like nmnner. .t a ".uu ha» .ma ^^j,, ,„. 

„„ fa.dy be ealea - ^ ;"; „„^ „, .„,„, the n,,,.- 

,;,l„oth« word, (to «"«■"■'- 
».f „ -nei'ial dUcusKiun) 

"„,„,»<■(«.■ i>"t ■«■»''" '^"'" 

bei'ome ios»- 

Hri<jhUi>\ it- *'" 

747, 751, 13 I'-- -., „ 

w K B. mi; •-•■«■'""'■' '• i" ' 

787, 19 L. J- l-"- 

(1844) 3 «B- 
J. Q. U- IS'- 

U It. 881. Othorwix- «1»" 
dumago U do,,,. '» » IX; 
,„„„..r by »)»,.■ ™u«,. not . „»' 


:., .■»"•-'> ">■»"*: 

L, any knowledge or a..-, r 
the company ■» ."van": '-'^j 
Co. V. *■«'■•"«» ^"""l" 1'"'" 
\ C. 390. 70 L. .T. r. C. t.3 


l«i«oii i. ..xpcol to) «oul.l of i|„.|r I,, „„ „,iJ,.„„. „f 
."«liK.M,.c.. Wu ,l„.ll «,. |„t..,. ,|„.,. „|„.,,. .,, ,..i,.l ,lutio» 
■.f »..(.. k,^.|,i„ff „,. ,.o,,„i,. „,.. i,„,„„,,, I,, t,„. |„j. .^ _,,. ^,^^ 

i««. ti„. f,.,.t „r „„ ,.,,,,i,i„,„ i,„,,,,„„i„^, i„ ,„,,,, j,_ „^^, 

«.mc. munn,..-, to ...M tl„. b,«d..„ „f proviuR diliK-,,..- „,. 
tl.e i.or»on ,vl,o i, u,„„,ml.l,. f,,,- i,, „,. i„ „„„,,, „„^j, 

mm., a ,.re,um|.tio„ „r ,„.^HI«,. Tin. Is s„i,| „i,|,„„; 

prcju,!.,,, to tho vet ,tri, t,,- y„l- of li„r,ili,v that l,„l,|« i,, 
tcrtiiiii rnws. 


Aifuin th™. i» u p,.™„,„,,ti„„ „f ,„.^-liK,,,,,. „l„.„ ihe 
'■'Use of tl„. n,i8.l,icr ,vus uppuirntlv u,,,!,,. ||„. ,„nt>ol 
"1 t ,.. . r.ten.l,..,t or hi, „,n„„„, Tl.c- rul,. was dp.|.ux.d 
I'V tlu.. h,x..|„.,,uer Cluimbn- in 186.", {l,, i„ tlK.,s.. u.r,„s: 
i ll'Tf Jiillst l)f iTisoliabl ■ .•vidrnn. of ,„.^,li^. ii, ,. 

■ Uul. whm. tlu. Ihi,,^, i« »|,„„ „ ,„ I,, ,„„|,, „,„ „,,„„^„,,. 
""■"t of th,. d,.f,.„d„n, ,„■ his sonants, ami ,h,. a,.,.id,.„t^, 
'askm.m the oidimu-.v course of things du-'s „ol happen if 
IhoR. who havL. the ,„a„uK,Mn,.„. us,, prop,..- „,„,(< 0, it 
I'fiords r..a,o„aU,. ovido,,.., i„ the al^wuc of vxplanation 
h the defemlanls, that the ae,i,h.„l a,-,«. f.o,,, want of 

Then.foro if I a„, h,wrull.v and a* of right („) passi„. 

'" '\ P^"' "■'"•'■'^ 1'<-'"I'I ■ '"■'■ l'andli«p hea, V „o,hI.s, and 
Koods be„,^ loweml by u erane fall „p„„ „„, ,„,| k„„<,k 
iu>. down this i« evi,lenco of n.gli.enee against the on,- 
'''""■'■ "' t' "■" «'li" "™ «n,.|ii„g the ei-ane (0, The 

wit)iio (1»- 



■') •icolt i\ Lvmlun_ jhtck rv.. 
3 H, & a 596. 3( L. J. Ex. 220. 

('") Botli thrse conditions must 
!* ''atinfied fn mnkf tlio nih- 
■■q)pn.'abl,.: »-,„,, ^ Z„„rf„,; 
'?'•". (hmdhiin Co. [1909] 2 K. It. 
•'■"'2- 7S L. J. K. B. IOCS. P. A. 

'"J Thnt id, n')t merely In- tlic 

defondunt'a liccnic, a- w-iH !»<• ox- 
plained later. 

(o) 3 H. A: ('. 59li. Cnrnpton. 
Bj'Ios. BInckliiirn. Keatiofr XI.. 
rfwfl. Erie {■. .1. iind Mellor J.; 
b'lt no disHontinir iudfrment wan 
delivered, nor docs the [(reciw 
ground of dissent appear. 



ivlorrod to n« tlio iloctrinc of " rca ipM 


oourw) of 

rule it commonh 

The Court will luko judiiiul uoti™ of wliut luipi^nf in 
tho orJin..r.v course- of tliii.KS at all events t.. tho extern 
of using thfir kiiowli'dKU of thu common ullairs of lifo t.. 
complete or correct what in stotod by witnm.e». .luilgo 
do not iillcct, for ..xiimple, to 1« iguorunt that tlic ulippmi.' 
of ono pusseugcr out of sovoral thouHiuid iu hurrjing up 
the stairs of a railway station is not an event so much 
out of the run of pure accidents as to throw suspicion oi. 
tho safety of the staircase (p). 

o„,.vi- When wo hate once got something more tluin ai. 

ScieDt ambiguously balanced state of facts; when the ovidonci. 

Inlaw? if behoved, is loss consisb-nt with diligence than witli 

r""n'.'" negligonce on the defendants part, or shows tho non- 
performance of a snociHo positive duty kid on him b> 
statute, contract, or otherwise; then tho judgment whothc. 
tho phintill has suffered by the defendants negligcn>.- is 
a judgment of fact, and on a trial by jury must be loft as 
such in tho hands of tho jury(g). The question of 
Inogligence is one of law for the Court only where tho tati> 
are such that aU reasonable men must draw the ■^anir 
Lnclusion from them (r). It is true that the rules as to 
remoteness of damage set some bounds to tho connexion ot 
the defendant's nogli>.'<-nce with tlio plaintiff's loss 's 
But cvi'ii in this respect lonsidrruble latitude ha< Iv n 

(p) Crafter v. Uetrop. U. Co. 
(1866) L. R. 1 C. P. 300, 35 
h. J. C. P. 132. 

(7) This is well put in the 
jadgmont in M'CMy v. Clark 
(Penmylvania, 1S61) Bigelow 
r,. C. 559. 

(r) Onrflmr v. Minhifja/t '>"■ 
tral S. B. (1893) 150 H. S. 319. 

(«) .Vetrop. Ji. Co. V. Jack^''" 
(1877) 3 .\pp. Ca. 193, 47 T. 1. 
C. P. 303. 


nllowodCO. Hailwav n,Ti,|.,„« havr W (ho la«t lift, 
uur. or moro been tl„. mm, fr,.,,u,.nt ,K.<a,ions of ,l<.fi„i„,, 
or ..ttcmpling to.l,.l|„o, the fmnti,.,- h,.t,v,v„ ,ho provin,- ' 
of tho jury iind thot of tho Court. 

Two considerable and well marked group, of ca.o, ,Un,, mm..„, 
out from the r,,t. One ,ct ,„ay I. hroadlv doscrihed a, ™""™ 
eve cro,,.ng ea,e,, aud eulminate,! i„ .WM K„.,rn. '"^"" 
llmlm,,, Compnn,, , . HV«,/™, d,,.i,|„l |„. t|,e „„„^. „;. --tK. 
l.ord. m 1874 («)■ tho oth,.r may still ,„oro rough!,- 'but .t"!.??."' 
m a n,an.u.r ,vhich road,., fatuilia,. ,vith tho repor't, will 
at once understand) be called " invitation to ali.Wit •' ca„.« 
n,e«, are now governe,! by ft,/,,,,, ,, y^^^^ j^^^^^^ 
Rodivay Company (x\ another decision of the Houso of 
Lords which followd closely on !('„»/.,,•, ea.o In 
..e.tber of these cases did the House of Lords intend to lav 
.lov.-n any new rule, nor any exeoptional rule as regards 
™lway companies: yet it was fn,„,d needful a IVw years 
Inter to restate the general principle which ha.l lx.e„ sup- 
posed to be impugned. This wa. done in^„i;tL 
Hmlwau Compan;/ v . Jaeknon (y). 

"Tho judge has a certain duty to discharge, and thr k , 
juror, have another and a different duty. The iud..e baa ''»" » ' 
to say whether any facts have boon established by evl,le„: -v. ' 
trom which negligence »,«,/ be njasonablv infern^d- tho '"'""- 
jurors have to say whether, from those facts, when 'sub- 
m.tted to then,, negligence, ouffht to be inferred. It i, in 
n.v opinion, of the greatest importance in the administ'ra- 

(') See William, y. G. W R 
C»- (1874) L. R. 9 E,. 157, 43 
IJ.Ex. 10.5, mjim, p. 43. Cp. 
per Lord Halsbury, 12 App. Ca 
•' p. 43. 

(«) L. R. 7 II. L. 12, 43 L J 
(J. B. 185. 

W L. R. 7 II. L. 213, 43 L 
i- Q. B. 151 (1873-4). 

(rt 3 App. Ca. 193, 47 L J 
C. P. 303 (1877). 




tiou of i«»ti... tlmt I1.0S0 sopuval,. fn«.tions »houU 1.- 
maintaiued, an-1 should W- umiutained It would 
bo a »ori<.u8 iin-oad on tl.e pn>vimo of a juv.v, it m a .a. 
,vl„.vc thovo „iv fa.t» fr,„n «l,i.'l, n.-liu'.na. ,nav,,- 
ablv be intVrrod, tl.« ,iuds;r »o,-. U. withdraw tho om 
f,.„u. the juvv on tlu. ,rou„d that, in his opnnon. n,., .- 
„e„o.. ous^ht not to be infenvd: and :t would, on tl,. 
other hand, ,.lae.> in the hands of the jurors a pow.^v win, 1, 
,„ight he exercised in th. n.ost arbitrary manner, it tlu .. 
were at liberty to hold that neglifjonee mi<rht }.- .nternM 
from any state of favls whatever ■(--)• 

-On a trial by jury it is, I eouee.v,., uudonb e.l th:,: 
the fa.ts are for the jury, aud the law for tho juds.-. h 
is not, however, in many eases ,,radieahle ,.on,,,l....h i ^ 
sever the law from the fa*;ts. 

"■nut I think it has always been considered a <iur.tiu„ 
of luv to he determined by the judge, subjwt, of oouv- , 
to revi(-w, whether there is evidence which, it it ,. 
believed, and the eountT evidence, if any. not he!, ^..l. 
would establish the facts in controversy. It is lor w 
jurv to sav whether, and how far, the evidence is to 1.- 
beli.^vcd And if the facts as to which evidence is ,u i- 
aro such that from them a further inference of lact u...v 
Ic^itimatelv he drawn, it is tor tho jury to say whdlrv 
tlmt inference is to he drawn or not. But it is lor U- 
iud..o to determine, subject to review, as a matter ol la». 
whclher from those tacts that tnrther inference m;,. 
legitimately be drawn" (")■ 

(5) Lord Cairn", 3 -Vpl'- ^''^- "' 
p. 197. Strictly the jurors Imvo 
to say not wl.ctlicr noglis''"™ 
ought to bu intciml, but 
wlictlier, as reasonable men, tlit-y 
do intsr it. Cp. Toal v. Xorth 

nniM J<!i- <-'''■ l''-""*' -^- '■'• 

■.SJ-2, 77 L. J. I'. C. lli>. 

(«) Lord Blaekbiirn, S Aii|i. 
fa. at p. 207. Cp. J'll''"' ' 
Womliwrll (1868), in Y.-i. It • 
L. 11. 4 Ex. 32, 33 L. J. H< '• 
wliicli Lord Blaekbur-i gx-^ on t" 
eite witli approval. 


«'ouffh to lix o» tho ,l,.f,„ ,"" '1""" 

;;,:;;:,::-;:;*""■ '•-"-■:;.x;:; 

ill tlie "level 



f?™,|, of eusos w. hav,. .o,„. T ,.ve. 

,1, ■iiii«.i3 at a [iluro iiiaJi. „„(! iimvi,!,.,! 1„- '"'"'inx' 

tl'« .company for that purpose-, a,„l whore th ' '■'""•' 

Tl.e part, as.u,„™ that the li„„-^:';T"'7- 

■' ^~. a„. h„ . r..„ „„.„ h;'a';;::::-c 

l4) SCO ,,p. u, 40, above, 
(<■) !*;■»,•(, V. _v. i\ I? p. 
[,'»"■] 2 K. B. 322, 70 L. J; 
1^- li. 830, was a similar laac, 
'"''" "■" "0 "Cslig,.„oo was 
'"?Se»lod be,„„d ,|,e fo^t „, 

"" ="'"»(!" dogr bcinif sliut 

"■"'""" -'Pucial »a,nii,g. (■„ 

J Q- B. 33:i, 61 L. J. Q. i. 13^ 
(p!a."t.lF a..,aul,e:l by „„„„„, 
wlio had growled in), a„<l CoM 
'■ "■ "'■ "■ I'o. [18MJ I Q Jl 
loD, 62 L. J. y. ij. 335^ q ^ ' 







Here the company has not entered into any contraet with 
l,im; and he must prove either that tlio company did 
something which wouhl Icid a reasonable man to assume 
that the line was clear for crossing (d), or that there was 
something in their arrangements which made it imprac- 
tic-iblo or unreasonably difficult to ascertain whether tl,.. 
, lino was clear or not. Proof of negligence in the air, so 
(to speak, will not do. "Mere allegation or proof that 
the company wore guilty of negligence is altogether irn- 
lovant; thcT might be guilty of many negligent acts or 
omissions, which might possibly have occa..ioned mjury 
to somebody, but had no connexion whatever with tli- 
injurv for "which redress is sought, and therefore the 
^ ^ (pbintifl must allege and prove JJOt merely that they wcn- 
l!rt& LgUgent, but tliat their nogligenco caused or matcrially 
^i^ M ^.^.lontributcd to the injury " (e). What may reasonably K- 
'W<,«^»*',,„Id to amount to such proof cannot be laid down i.i 
''*''^*^"^^ -encr-il terms " You must look at each case, and all tin- 
TTT^Vi Ifacts of the case, before you make up your mind what 
^ ' 'the railway company ought to do" (/). But unless the 
plaintiff's own evidence shows that tho accident woii do,. 
to his own want of ordinary care (as where in broad day- 
llight he did not look out at all)(.7), the tendency of mdciu 

(rf) As in Wtniless'a case, L. R. 
7 II. L. 12, 43 L. J. Q. B. 185, 
where the gate.! (intended pri- 
marily for the protection ot 
rarriage trafflo) wero left open 
wlien thoy ourIiI not to have 
been, bo that the plaintiff wa» 
thrown off his guard; and in 
.S'milA V. S. S. By. Co. [1896] 
1 Q. B. 178, 64 L. J. Q. B. 219, 
C. A., where it was held that 
there was ovidenoo of the plaintiff 
having been misled by tho gate- 
keeper's inaction into supposing 

that no train was approaching. 

(e) Lord Wataon, U'lr^elhi y . 
r , t 1 W . R. Co. (188111 12 
App. Ca. 41, 47, 56 L. J. Q !!■ 

if) Bowcn L. J., Unvei/ v. f.. 
i S. W. n. Co. (1883) 12 (J. !!■ 
Div. at p. 76. 

(I7) Bavetj V. L. i S. It'. /*■■ 
Co. (1883) 12 Q. B. Div. 70, 53 
L. J. Q. B. 68; a case whifl" 
perhaps belongs properly lo il,.- 
head of contributory ncgliBc"". 
of which more presently. On';' 

pthori.^- i» ,0 k„o tl.o matter very „„.eh „t large for tl„- 

the railway company «a» that the train «i„Vh .■ 
-.• and killed the p.aintir» hu».,m. 2 ::',:;: 
bM e™„„,„,th™u,hthe.tati„n.herehe.a.,™.^ 
U.C 1 „c It ,vas „,gl.t at the tin,e, but not u thiek ni-h. 
Ten ,v, n™se» di.tmetly and positively ,e.,ifi„l that , '■ 

«.u.edn..h.tU. Tl....v„rethattheydidnoth 
■ A jury hanng foun.l for the ,,,„;,„;„. -^ ^^.^^ 

tl. majoray of the House of I.ord, that the Court „ , 
ne ente.r a verdiet for the defendant., although th 
not eouecal their opinion Ihat the ae.ual ve diet „ 
perverse one(«;. ^""^ '' 


lu the oth.r group, whieh «e have ealh,| 

' in\ iiation Tfie 

,„,i- ,,,.. °,, " ^ "."eeaunl ■ juxilatit 

al.ght ea»es, the nature of the facts is, if an,thin<- \"1'™ «» 
less favourabe to the defend-int \f • . .• '"">" "Iwlu " 
,, ,. , '-'"' ueunuant. A tram stopp ng at a ^"'"P- 

station overshoots the platform .,o that the froutlrrial ,^ 
M> .t a plaee more or less ineonvenient, or !t vt/^^'^/TI^'*-*- 
d-gorous, for persons of ordinary bodilv ability t. ali-^ht ^"'^^ 

A passengor bound for that station, or othenvisominded to 
-L^l.t, IS unaware (as by reason of darkness, or the like 


'li<> <irtu,„,lu,„,. of dayliBl.t 
sfcrii. to dislini-uiali tllis fruin 
S'altrrii't caae (next nuto). 

(/.)(187S) 3 App. Ca. 1155, 
-\rarly all tho mmlorn cases on 
'oudcKc of ncgliK,.„co" wore 
wtcd in tl,o art-umont (p. ll(jl). 
Uli'trvo tliat tho quoation of 
"": ""■•"=' WnjT ajaimt tho 
"'Kilt of evidonco was not open 
(li. 1162). ' 

(') Tho majority consisted of 
l*i-J I'airns (who thought the 
P. — T. 

vcrdi.t could not have stood if 
tho accident had happened by 
"l-yliBht), Lord Penzance, Lord 
OJIagan, Lord Selborne, and 
Lord Gordon; the minority of 
Lord Hatherley, Lord Cob.rid.-c 
and Lord Bjadiburn. KlU, \ 
<;■ ly. S. Co. (Es. Ch. 1874) 
L- R. 9 C. P. 551, 43 L. J. C. P. 
304, doei not socm consistent this decision; there was 
clllTcrencc of opinion in that case 

H H 




he well may bo) of tho incotivcnionco of tlio places (fc;, or 
cUo is iiwaro of it, but takos tha attoiKbiit risk rather than 
bo carried beyond his destination. In either case ho jets 
out as best he can, and, whctlicr through false security, tr 
in spito of sneh (aiution as he can use, has a fall or i.- 
otherwise hurt. Hero tlio passenger is entitled by \u> 
contract with tho company to reasonable accomniodatien, 
and they ought to give him facilities for alighting in a 
reasonably convenient manner. Oversliooting tha plat- 
form is not of itsclC negligence, for that can be set rii;lit 
by backing the train (I). It is a question of fact whether 
under the particular circumstances the company's servants 
wero ronsonably diligent for tho accommodation of the 
passengers ()«)> "^^ whether the passenger, if ho alighicil 
knowing tlio nature of tho place, did so under ii 
reasonable apprehension that he must alight there or net 
at all (n). 

tiouH with 
tory negli- 
gence, Jic. 

tioii8 of 

All these cases are apt to bo complicated with issues 
of contributory negligence and other similar though not 
identical questions. We shall advort to these pri-sently. 
It will bo convenient now to take a case outside tlicso 
particular types, and free from their complications, in 
which tho difSculty of deciding what is "ovi(lenr;> of 
ncligeucc" is illustrated. Such an one is Smith v. 
London and South H'esfera Railway Company (o). The 

(/I) CocHle V. S. £. K. Co. 
(1372) Ex. Ch. L. U. 7 C. P. 
321, 41 L. J. O. P. 140. 

(0 Siner V. O. W. R. Co. 
(1809) Ex. Ch. L. R. 4 Ex. 117, 
38 L. J. Ex. 67. 

(»j) liriilgrn V. JV. Loudon R. 
Co., p. 4G1, above. 

(n) Itobson V. N. E. R. Co., 
2 Q. I). Div. 83, 46 L. J. Q. B. 

60; ;.'o»« V. iV. E. R. Co., 2 ICs. 
Div. 2(8, 46 h. J. Ex. 371 ib'l'" 
in 1876). 

(o) L. H. 5 C. r. 9S, 39 1.. J. 
C. P. 68, in Ex. Ch. C. 1'. il, 
40 L. J. C. P. 21 (1870;. Tho 
acci;letit took piaoo in tlio cstra- 
ordimirily warm and dry siimiiit'r 
01 ltl68. A soniewiiat tiiir'ar 
Amoricau ease of firo carried bv 

Llmmbcr to be noarlv approached Th„ /'^™"1»"^ 

;csp.t of ^ope., b,, jb;;;:\„i!^,-::/- 

Hot dry woatbor bad provailod for so„,e tin.o, and at 
About a fortmgbt oarlier gra« bad boon cut by tbe 

ttt , '"'T' "" ""^ •'"'"'^ ""J---^" "- line and 
the boundary hodgc trim.ned, and the ,.ntMn , 

- o heaps and lay aion, the bant in.ido t,,:, t 
These euttmgs and trimmings were, by reason of ,1 
^t.toot,.e,vea,,er, very dry and i„ih:n,„Lr''''' 
^"^' t!,o hedge there .vas a stubble held; be,-ond that 
-ad; on tl. „,,,, ,,j„ „f ^,^ ' ^ ™d * t 


Two trains passed, and immediately or sl,ortlv after 
v.rds the strip of gra.s between the raikoad and t J 
odge was seen to ^. on fire. Notwithstanding a le Ir 
made subdue it, the fire burnt through the hed^e .""d 

There was no oyidence that the railway en-ines were 
■".p-perly constructed or worked with refere'nrto thT 

»i"ii is SlUwmikee ami St. i>„„; r„^ 1 < . 

'-■ 3. 469. ^ ' "* '" ""' "P™' in Es. Cli. L. K 6 

C, P. »* - '-^ 


of negli. 

/.. .f .^ H'. 

li. r,._ 

at p, 15. 

H H 2 



e«apc of sparks, and no direct Dvidcucc thai the fire caiuo 

from one of them. , ,, . , i 

The jurv found for the plaintiff ; and it was held .though 
uith somo difritulty) {q) that they were warranted m so 
iindin" on tlic pl'ound that the defendants were negligent, 
having regard to the prevailing weather, in letvmg tlie dry 
trimn^ings in such a place and for so long a lime. The 
risk, thougli unusual, was apparent, and the eompany wa,« 
bound to be careful in proportion. " The more likely the 
hed.-e was to take fire, tli;.- more incumbent it was upon 
the°co.npany to take care that no innammable maU'rial 
remained near to it " (r) . Tims tliei-o was evidence enough 
(though it seems only just enough) to be left for the lury 
to deeide upon. Special danger wa^ apparent, ami i" 
would Imve been ca.^v to usi' appropriate caution. On Ih. 
other hand tlie happening of an accident in extraordinary 
circumstances, from a cause not apparent, and in a manner 
that could not have been prevented by any ord.nuv 
:r.oasures of precaution, is not of itself any evidence ol 
negligence (s). And a staircase whieli has been used hv 
hn^ny thousand persons without accident cannot be pro- 
nounced dangerous and defective merely because the pkun- 
jtill has slipped on it, and somebody can be found to 
'■ suggest improvements ((). 

(}) Brelt J. di'sonted in the 
Common,and Blackburn J. 
expressed some doubt in the Ex. 
Cli. on the ground that the par- 
ticular damage in qucJlion could 
not liave reasonably been antici- 

(r) Lush J. in Ex. Ch. L. K. 
6 C. P. at p. 23. 

(s) Bhjlh V. Birmingham 
Waterworkt Cc. (1856) 11 Ex. 
781, 2.5 L. J. Ex. 212, 105 E. H. 
T91, aiipru, p. -19. 

(1) Cr.ifter v. Melrop. II. Co. 
(1868) L. B. 1 C. P. 300. 35 
L. J. C. P. 132; the plMiiilill' 
slipped on tho bra.^s " nusin.' 
of tho BtepB (this being the 
material in common use, whorraf 
the Court took judicial notice 
" with the common expori.'iief 
which every one has," per WiUeJ 
J., L. R. I O. P. at p. Wi), 
and it was suggested that IraJ 
would have been a safer malcrial. 



Illustrations might bo largoly n.ultiplied, and may bo No rr™i., 
found .„ abundance in Mr. Bovon's monograph, or by K'™'„ 
moans of the oitations and discussions in tho loadin" cases '''■'■'"■"°- 
themselves. Enough has boon «aid to show that bv tho 
nature of the problem no general formula can be" laid 
down except m some sudi purposely v„gu'. terms a.s woro 
used in Scott V. London Doclc Co. (it). 

, Wo have said that tlic amount of caution required of a 
jcitizen in his conduct is pr„i>ortionod to tlie amount of 
apparent danger. In estimating tho probabiUtv of dan-cr 
to others, we arc entitled to assume, in tho abscnec°of 
anything to show the contrary, Uiat thov Imvc tlm full 
use of common faculties, and aro eapablo of cxercisin-. 
ordinary caution. If a workman tlirows down a heavy 
object from a roof or scaffolding "in a countrv village 
where few passongers arc,' ho is froo from" criminal 
liability at all events, provide.1 " lio calk out to all 
people to have a care" (x). Xow some passer-b,- may 
be deaf, and may suffer by not hearing the warning. 
Thnt will be liis misfortune, and may bo unaecompaiiied 
by any imprudence on his pai-t; but it cannot 1« set 
down to the fault of the workman. If the workman liad 
no particular reason to suppose that tho next passer-bv 
would be deaf, he was bound only to such caution -^ 
suffices for those who have oars to hear. Tlie same rule 
must hold if a deaf man is run over for want of liearin<. 
a shout or a whistle (;/), or a blind man for want of 

Duo caro 

VIirioH 1(14 

ri>k: np- 
of tliid to 

t ! 

U) Ulackat. Comm. iv. 192. 11. Co. (1867) I, H 2 C P 

D. 9. 2, ad. leg. Aquil. 31. la a 631, 36 L. J. C. V. 249, decided 

let to the jury wholher, on the accident wa, rtolly due to the 

w.ole, the work was being done man's own want of care. 
^it:i reasonable care. 


seeing a li"ht, or if a colour-blind man, being uimble to 
make out a red danger flag, gets in the lino of Ore of 
rifle or m-tiUcry proetieo; or it in anv of these circuu,- 
etanccs a child of tender years, or an idiot, suffers through 
mere ignorance of the meaning >vhich the warning sight 
or sound conveys to a grown man with his wits about hiu, . 
^nd this is not because there is any fault m the pcrM.u 
harmed, for there may well be no fault at all. Whatev.r 
we think, or a jury might think, of a blind man walking 
alone, it can hardly bo decmrd inconsistent with conm.uu 
prudence for a deaf man to do so; and it is known tliat 
colour-blind people, and those with whom they live, oft>n 
remain ignorant of thoir failing until it is disclosed by 
exact obsci-vation or by some accident. It is not that 
the law censures a deaf man for not hearing, or a coloin- 
bUnd one for not perceiving a red Hag. The normal 
1 measure of the caution required from a lawful man must 
I be fixed with regard to other men's normal powers of 
! taking care of themselves, and abnormal infirmity cau 
i make a difference only whon it is shown that in tl.o 
' particukr case it was apparent. 

On the other hand it seems clear that greater cart' is 
required of us when it does appear that we are dealing 
with persons of less than ordinary faculty. Thus if a 
man driving, or a cyclist, sees that a blind man, an aged 
man, or a cripple is crossing the road ahead, he must 
govern his course and speed accordingly. He will not 
discharge himself, in the event of a mishop, merely by 
showing that a young and active man with good siglit 
would Imve corac to no harm. In like manner, if oiw 
sees a child, or other person manifestly incapable et 
normal discretion, exposed to risk from ono's action, it 
seems that proiKirtionate care is required; and it fmtlier 


tion where 
the person 
acting lias 
notice o£ 
danger to 
ao iufimi 
or helpless 


jo^ms immaterial that tho child would not bo there but 
fo tho ...vlossna,, „f b„„,, p„ent or guardian or his 
«=n.,nt. The prind,,!., „roo,,tpd in- »omo tin,o in tho 
Supromo Court of the United State ,,), i, no,v ro^ognizod 
by the House of Lords ,u> applieahlo to ehiidrcn of t^.nder 
years (a). 

Ill -—Contributory XegU;)e>ifc . 
In order that a man's neglinponce may entitle another 
to a remedy against hin., that other must ha^e sullered 
harm whereof this negligon«. is a proximate eause. 
Now I may he negligent, and my negligeuee mav ho 
the oecision of some one suffering harm, and ye't the 
.mmediate eause of tho damage may lx> not n,v want of 
caro but his own. Had I been eareful to l^gia with, he 
would not have been in danger; but had l,c, bein- so 
put in danger, used reasonable caro for his own safety or 
that of his property, the damage would still not have 
happened. Thus my original negligeneo is a compara- 
tively remote cause of the harm, and as things turn out 
the proximate cause is tho sufferer's own fault, or rather 
(since a man is under no positi^ dutv to bo careful in 
his own interest) he cannot ascrite it to tho fault ot 
another. In a state of IWts answering tliis ^^neral 
description the person harmed is by the rule of the 
common law not entitled to any remedy. He is said 
to bo "guilty ot contributory negligence;" a phraso 
*eU established in our forensi. usage, thougli not frtv, 


iible uvijli- 
ntiiflt U> 
cauHe ot 
hum! : 
own iicjfli- 

caum'. uit 

(z) "The caro and caution re- 
quired of a child is according to 
his maturity and capacity only ".- 
■ft- It. Co. V. Stout, 17 Wall. 
657; Baltimore ^ Potomac It. 
*■ V. Cumberland (1900) 176 
C. S. 232. 

(a) Cool-r V. Mid/and G. W. 
P.. of Ireland [1909] A. C. 229, 
78 L. J. P. C. 70, Bco especially 
T-ord Atkinson's opinion. Note 
that the House decided only that 
the verdict was open ^ tho jury 

on tho fnct?. not that 
with it. 

thry agreed 


*, n 




from objoetion. U r..hcr -f ^^^'l^trXT »"! tr 

•'«-'- r: riot t"i-p"-'-'^"^ 

his own safety w i° ^ " i,„ ^i.oao cnrc- 

this view i» ...ilhor a ro.«nabL «ne^^^^^ .^1^ ^^^ _^^_^. 

modern uutUoritj , and m tar ^^ ,ji^,„l by tl.. 

«,n„„,lymdnt«ineda„ywh-o.^^^ ^_^.^___^^^^ _^_^ ^^_^^,^,_, 

e„„n>on pracfeo f ^^^.^^^ ^^.^ question presen,- 

exponenc* of tK- ^ . ^^^^ _^^^j „,„,.i ,,^v , 

/-i? JL /*"" " is to say .bat it the ,,Uin.iK ooulcl 

ht^'^ tbe -^- ;-:i7o — 1» o^ '- --- 

^ ifcu^Ito exorcise, haN> ^\o>">''" „„.. /M Thatistosay, 

^^ A V he is not to lose b. ->»« yj^^^^^,,, ^Uou^h .v.tbom 
^ ^ negligent at some sta^e of ^ ^J ^„, „, .-ouUl 
that ne,U,enee 'H-u-^^-- t ^ ,^„ ..U.,.. 
not have hap,«nod, bu ""'- j^^ „£ tho event, 

'"^■^^'f »'"-,::f:\; ritWpens.isin.n.- 
so that the mischief, as .mu ^^^ ^^ j,^,, 
diately duo to his own -»' f ;'; " j eontribnlo,v 
defendant's. Again the P»-\ /^^J^ " ^ ^^^nficaUoa 
negligence fails - account .-ti^e^^^^^^^^^^ __^^^. ,,^^^.„ 
of the rule, "namely, that *°"''' ^^ ^^^^, „,j,ii,„„„ 

heen guilty of ^^^^^^T:^^'^^ >- '^^ ">' 
may in fact have contributed to ^^ ^^^j._^^_,^. 

defendant eould in the '-""' ^J "^ ^j^hief which b:,P- 
eare and diligence, have avoided th mi eh- ^_ ^^ 

pened, the plaintiH's -?1'^-- .'^J.^^^ ,„„ ,,;,! ,« n,... 
.^d in the latest leadmg ease, of which 

(J) Lora H!ackh.irn, 3 App. 
Ca. at p. 1207. 

(„■) Lord Peniance, Sc'len >. 
I I y. IF. S. Co. (18T« 1 
App. Ca. at p. '59. 


to Buy, tho criterion of what wiw tlio proxinmto onii». of 
<lio injury is adopted throughout (rf) . 

Tho ikmont of truth which tho penal theory, os I 
have called it, presents in a distorted form, is that tlio 
rule is not merely a logical deduction, but is founded in 
public utility. ■• The uhinwte justilication of the rule is 
in rcusons of policy, viz., the de^iro to pnnent .orcidenf! 
by induciuit eneli mcnibcr of tho community to act up to 
flio stindard of due care sot by the law." Tho writer 
■ lUoU'd goes on to siiy: -"If be doee not, he is deprived 
of the assistance of the law" (c). But this is not .,„ite 
<orrect, for if tho defendant could finally have avoided 
the mischief by ordinai-y diligence, it matters not how 
enrelcss the plaintilT may liave Iwn at tho last or any 
jireceding stage. 

The leading case which settled the doctrine in its Tuf ■,. 
modern form is 7'a/^.y_ll-(o-„,,„„ (/) . Tho action was "'"""'"■ 
ngainst the pilot of a steamer in the Thames for running 
down tlio plaintiffs I)argo; tlio plaintiffs own ovidimoe 
sliowed that tliero was no look-out on the barg": as to 
tlie conduct of tho steamer tho evidojico was conflicting, 
hut according to the pUintiff's witnesses sho might easily 
have cleared tho barge. Willes J. left it to tho jurv to 
say whether tho want of a look-out was negligence on J UliAlM^ 
,t.hc part of the phvintiff, and if so, whether it " dircctlvA • J\ilSb? c 
'contributed to the accident." This wa.s objeutod to as ' 
too favourable to the plaintiff, but was upheld Iwth in 

id) The Bemimt (1887) 12 P. 
D. 36, o6L. J. P. 38; affd. nom. 
iUUs V. Armttroitg (1888) 13 
API>. Ca. 1, 37 L. J. P. 65; see 
wpraaliy the judgment of Lind- 
l«r L. J., and cp. Little t. 
Umkett (18S6) 116 U. a. 366, 



(,e) W. Scliofleld in Ilarv. Law 
Bev. iii. 270. 

(/) 2 C. B. N. S. 740, 5 C. B. 
N. S. 673, 27 L. J. C. P. 322 
(1857-8), 109 R. R, 86.5, 116 R. 
n. 774. 

/ f6-^ 


Baiilrt/ V. 

/.. * .V. II- 

K. '■»■ 


the tuU Court of Common Plou- and in the Exohc.a, r 
Clmmbo,-. In Uic con.idcro.! ju.lgn.ont on appeal {3 't 
i. »,ud a,at .ho prop.. .,uo«tio„ tor tho jury « whotlur 
1 l,uuagc wa:occ».ionc,l entirely hy tho neghgonco 
„ Lnpro^r conduct ot the doron.h.n. or .other ., 
pUintln L^eU -o far contribu.-d to .ho ■-"';■"'■ 
his own,onc. or want of ordinary and ™""'"" " 
and cautio:. that, bnt for ,0,1, ne.h.onc,- or w^ 
„rdin.rv car. and .aution on hi» p.u- ./h. nn fo t 
would not h.v.. hap,K.n,.J.' Hut n.^l.^n- - " 
without il tho h,.rn, .on,,da,nod of would (/,) not hav, 
: pen,.d;"n„rifthedof.ndantmi,htbythoo..rc..^^ 

of care on hi« port have tho eo„..nuenc« of .1,. 
neglect or carclos^ncss of the pUintiH. 

In Mfcj/ V. Lo«duH a,d Xodh Wc^lcH UaiU'a, 
Co. ii\ thi« doctrine revived a striking eonlirmafon . 

The defendunt railway con.pnny wa» .n tho hah.t nt 
taking full trucks from the siding of the Pl-"""^' ™ ''";; 
owners, and returning the empty trucks .here. Ove, th 
siding was a bridge .ught feet high fro.n .ho ground^ 
a Saturday afternoon, when all the colhery ■»-''-"' 
work, the servants of the railway ran so„.o rucks on .h 
Tiding and left them there. One of tho p.a.n..ffs - 
knew this, but nothing was done to remove the fuck. 
The first of those trucks contvinod another broken-do... 
truck, and the^r joint height amounted to ebvon f« ■ 
On tL Sunday evening the railway -"-^ ^-^^f 
the siding a line of empty trucks, and pushed on tn front 

Cy) 5 C. D. X. S. at p. 58j, 
116 B. R. 7^9- 

(A) Kot '■ could: " >«! Htvcn 
on Negligence, i. 162, Srd ed. 

(i) 1 App. C«. 754, 18 L. J. 

Es. 573, revorsinK the judgment 
of tho Exchequer Chamber, L. H. 
10 Ex. 100, and restoring thai of 
tho Court of Exchequer, L. H. » 
Ktc. "1 (1974-6). 



of thorn all thoso proviou^ly left on tho ttiiling. Sonio 
resiHtiinco was felt, and tho powvr of tlio ciijjino pushin^^ 
the trucks wus imn'aiod. Tho two trucks ut thi* hrud of 
tho liiu', not Iwinj; iiblo to piwH undir tht' hrulj^'f, stru<;k 
it iind broke it down. An action wua brought to ruooviT 
daniagL>s for tho injury. Tho dofriic-o was contributory 
negligence, on tho ground thut th*' pUintitt's' servant** 
ought to littvo niovt'd tiio iirfet sot of trucks to a safe ])laco, 
or at any rate not have loft tho pil.'d-up truck in a 
diin^'crous position. Tlio judge a_t the trial told tho jury 
tint tho plaintiiTs must satisfy tlx'ni that tho ai'iidont 
"' hiipponcd by the negligence of the defendants' wrvants, 
and without an}' contributory negligence of their own; in 
other words, thut it was so.Vly by tho negligence of the 
defendants' eorvauts." 

On these fiicts and under this direction thf jury found 
thdt there was contributory negligence? on the part of the 
pliintiffs, and a verdict wus entered for tlu- defendants. 
Tlio Court of Kxchecpior (fr) held that there was no 
evidence of contributory negligence, chiolly on the ground 
thiit the plaintifl's were not bound to expect or provide 
against tho negligenco of the defendants. The Exchequer 
Clmmber (l) held that there was evidence of the plaintiffs 
having omitted to use reasonable precaution, and tliat tho 
direction given to tho jury was suflieicnt. In tho House 
of Lords it was held (m) that there was a question of fact 
for the jury, but the law had not boon sufliciently stated 
to them. They Iiad not been clearly informed, as they 
should have been, that not every negligence on tiie part 


{k) BruQiwell and Amplilctt 

(/) Blackburn, Mellnr, Lush, 
Grove, Brett, Archibald JJ.: 
dm. Dcnraan J. 

(m) By Lord Tenzunce, Lord 
CairiiH, Lord Blackburn (thus re- 
tracting' his opinion in thr Ex. 
Ch.), and Lord Gordon. 


«' Proxi- 
mate " or 
" deci- 
sive " 


mischief will oat " exercise ot 

„encc that the defendant eouU not by 
'ordinary care ^-o --aed ^e -«U^. ,,„ ,,,,„e„ 

■■ It is true that in part of his ^"""^ l* ^ ;„,. 

3„age pointed —on to the condnc^^of ^th^^^^^ ^ 

,„„r, in ^>*™-7j „^^;U „, the iury on th. 
obstruction, us tit to be co ^^ . ^ ^,^^^, 

question of negligence; but "«/"><^^ *° ^ ,,^„„ „f the 
Lught the -^--^"-;^7;V ;'u Lidcnt, .n, 

^Xr^£^>e evidence......-- 

tbis was the --f-f ,™::„ttcrr!and diligenc 
jury might well think tha ^'l" ^ ^^ J\„t,_^thstandin. 
in the part of ''-^^'"^f ;:'; .ti: inle^ving the 
,„y previous -^l'^-^ ^f £" made the n-ident 
l^aed-up^trucU on t J.n.^ defect of the l^rned 

jury" («)• 

I 1 1 tb«.t tlie true ground of contribu- 
This leaves no doubt *at t he ^^ ^^ ^^^^ .^ .^ ^,„. 

tory negligence ^^^^ ^^^f ^d -uegUgen. on ... 
lproxim»tBJ»»so of *6 "'"-",, .„du,i„g causes o, 

B„t the contract of "c«u,c^an,l 

a„e upon-, the deep w«t«^ «' 
philosophy ate too near. 

(n) Lord Peniancc, 1 App. Ca. 
"f.)?;, - Mr. Wharton put, 
it, not a cau«, but ^ eonduion. 


oditiou, that "decisive" u.ight convey the aieaning more 
exactly. For if the defondant'e original negligence was 
so fur remote from the plaintiil's damage an not to ho part 
:it least of its "proximate cause' within the more general 
meaning of that term, the plaintiff would not have any 
case at all, and the question of contrihutory negligence 
could not arise. We shall immediately see, muroovcr, that 
independent negligent acts of A. and 1!. may hoth he 
proximate in respect of harm suffered by Z., though either 
of them, if committed by Z. himself, would have prevented 
him from having ,;ny remedy for the other. Thus it 
appeal's tliat the term " proximate ' is not used in pre- 
cisely the same sense in fixing a negligent defendants 
liability and a negligent plaintiff's disability. 

The plaintiffs negligence, if it is to disable him, has to 
Ix.' someliow more proximate tlian the defendant's. It 
sionis dangerously ambiguous to use "proximate ' in a 
special emphatic sense witliout furtiier or otherwise iiiarli- 
iug tlie diftorence. If we suid "decisive" wo should at 
any rate avoid this danger. 

It would seem that a person who has by his own act or Solf- 
default deprived himself of ordinary ability to avoid tlie J^^V,'!, . 
consequences of anotlier's negligence can bo in no better *"'«™iV 
position than if, having such ability, he had failed to qnence. of 
avoid tliem; unless, indeed, the other has notice of his ^:^if" 
mability in time to use care appropriate to the omergcney; '<"""■ 
111 which case the failure to use tliat care is the decisive 
negligence. A. and B. are driving in opposite directions 
on the same road on a daric night. B. is driving at a 
dangerous spi«d, and A. is askep, but B. cannot see that 
he is asleep. Suppose that A., had he been awalie, might 
have avoided a coUision by ordinary care notwithstandLg 
B.s negligence. Can A. he heard to say that there is no 


tionit : 
Saiies v. 


contributory ucgligonce ^b-P"'"":^! 

It seems not. Suppose, on the other ha^d, that Ae ^^ 

thing takes place by daylight or on a fine moonlight night, 
o2t B. would with common care and attention perceive 

Iwndition. HereB.wouldbobound^itseomMou^ 
pecial caution no less than if A. had boen disabled, sa^ 

;r:tndden pai-alytic stroke, without default of his^w. 
^ if a man n^eeto a runaway horse, he cannot t^l^ -^*o 
it is loose by negligence or by inevitable accident, ba 
tlli can make no diUcrence to what a prudent man eoj 
or would do, nor, therefore, to the legal measure of the 
diligence required (p). 

Cases eadier than'r«ff v. lV<znn«« (g) are -^ ^^ 
only as illustrations. A celebrated one is the donko, 
asT " Dm^. Mann (r) . There the plamtiS had turno 
MsLss itTTn-a highway with its forefeet fettered, 
it was run over by the defendant's waggon, go-S;' " 
.„,arti8h nace " It was held a proper direction to th. 
:: it rhatevcr they thought of the plaintifl's co„- 
Lli he was stiU entitled to his remedy if the accident 
L»ht have been avoided by the exorcise of ordmatj. me 
"„°thc part of the driver. Otherwise, "a man might 
Ltify the driving over goods left on a pubhe highwa , 
L even over a man lying asleep there, or the purp^ J 
running against a caxriage going on the wrong side o the 
road " (s) Witli this maj be con.pared the not much later 
case of Mayor of Colchester v. Broolce{t). where it ua, 

{;,)Cp. Mr. W. Sclioaeld's 
article in Hmv. Law Bev. "'■ 

(,) 5 C. D. N. S. 573, 27 L. 
J C. P. 322, 110 U. K. 774. 

Cr) (1842) 10 II. & W. 546, 12 
L J. Ex. 10, 62 H- B «98. 

(,) Parko B., 10 M. i W. »t 
p. 519; cp. his judgment in 
Sridt/e V. Grand Junction li. t'o. 
(1S39) 3 M. & W. at p. 218. « 
R. R. 693. 

(() 7 Q. B. 339, 376, 15 I.. J. 
Q. B. 69. 



«km l7al ^ r , '" " "'"'• "'"' ■'''"''' ^"'h duo care and 
bo 1 """ " "^ """■• "'" ^'«' "' tl^" oyster be^ 
excuse. The facts of Davies v. .Ua„„ ,„„„,,. 

oit:^:r '^ 't^-:" ^" ^^"■"'■^-' ^-^-'^ -^- 

iuuowea in this country («). 

r^ut^^^i^"*^ ^"^ '^ ^ °-"^ -'«'?"' of obvious «-.. - 
fjult on botli sides, where the plaintiff's Hnm %>«>■. 

i— itely due to his o.n want otr 'rSelX: '""""""■ 

had p„ up a pole across a public thoroughfare inteZ 

:'";'' ''" '-'i - "gl" to do. The philntiff ^iS: 

thought he couU they were to find for the do end i" 
- hey did so. The judge's direction wa. affiled ^ 
moti n for a new trial. "Qaa parson, being in faulw^I 
Rto^..^anoXho.'.n^g ^^^^, ,^'j^[ 

C aortth T """ *" "''' "•"' ""^ P-''-» of the 

all Eu t "r ""' " ''™-^™'"'' ^^"- of the 

er and ^ ""^ "" "" "'''''" P™'^'"""" -"-■ The 
or and dec,s>ve cause which concurred was the plainti^I 

fadure to see and avoid the pole in his way. 

oI^in^T of """■;'■' *'° "'^'""'"'^ ■''-". -■'^t''- of 

of commission, has been the proximate cause 

the injury, h, is without remedy against one aulZ 

^ W^S. H„v. u. B.,. „i. 

W 11 Eaat 60, 10 R. B. 433 




„„ " f „^ On the other hand, i£ the defendant's 
the wrong Ij),- "» ' . ^ excused 

*„.,U lias been the proximate cause He is 

Z lll^r -^ the defeud^fs negligence were t c 
flSto: decisive) can. of the «« ;t .a. ^ 

defendant wouU In such a ^o have failed to make a 
his defence, and the. pUintill, haying P--'^ ^''^^^ ^^ 
a fcndanfs negligent was a proximate «iu«, f n t 


entitled to succeed. Ihedelcnauii „. ^nt that tli.: 

„ot merely that the plaintiff was ^f^^^^^'^'^^^,. 
„1.,mtiff could by the exercise ot ordinary >^ 

It is a question, either way, ^^'-J^^V L ^T comn.u 

„ . » nssel (6) Lord WaUon (Lord Black- 

C„... B.n». .. -«»»», PP- •"*■ B^c, tm) 3 M. & W. 2I», 

478, above. *« t> R fiflO 

cl, P„ Undley L^ J., "' " «• «^;t i,i„a.«y L. T.. .-^ 

• B«2i^,12P.D.68,59. p.^D. 89. 


successive. In regard to the former class, «uoh a. Dublin 
Wu^Uou, & IVe^ford %. Co. v. SkUlery », or the case 
of two persons ccUiding at a street corner, the rule is that 
«/ Oc plaintiff could by the exercise of ordinary care have 
avoided the accident he cannot recover. . In regojd 

to the latter class of cases, such as Davies v. Mam (/) and 
^^^k'OUu.-t ^Y.W^y. Co. (g), the rule may he stated 
thus: that UwboMlUhman opportunity of avoiding the 
oecideoL notwithstanding the negligence of the other i, 
solely rrmmible . And tlie ground of both rules is 'the 
«ame: that the kw looks to the proximate cause, or in 
other words, wiU net rAcasure out responsibility in halves 
or other fractions, but holds that person liable who was in 
the mam the cause of the injury " (A). 


Anotlier kind 

of question arises where a person is Combined 

mjured without any fault of his own, but by the corn- 
bind cfl..cts of tlic negiigenco of two peiwus of whom 
the one is not responsible for the other. It lias been 
supposed that A. could avail himself, as against Z. who 
has been injured without any want of due oaxc on his 
own part, of the so-called contributory negligence of a 
third person B. "It is true you were injured by my 
negligence, but it would not have happened if B had 
not been negligent also, therefore you cannot sue me or 
at aU events not apart from B." Eecent authority is 
decidedly against allowing sueh a defence, and in one 


(«) 3 App. Ca. 1165. 

i/) 12 M. 4 W. H6, 62 E. H. 


(?) 1 App. Ca. 754, 46 L. J. 
Ei. 573. 

(*) L. Q. B. V. 87. It may 
now be .ilated that the writer wai 
Ike lalo itr. W. Wilie. Tie dii- 

P.— T, 

linction had been iaicen in Massa- 
ohuiotts in 1869, Uurphy ». 
Leant, 101 Mass. 455: where, 
however, it would seem on the 
facta that the plaintiff necdleiul}' 
oiposed herself to an obvioua 





particular ck» of caaos it has been emphatically dis- 

aUowed. It must, however, bo open to A. to answer to 

Z • "You were not injured by my negligence at all, but 

only and wholly by B.'s." It seems to be a question of 

fact rather than of kw (as, within the usual limits of u 

jury's discretion, the question of " proximate cause " is n. 

aU ordinary ca8e8)(i) what respective degrees of connexion, 

in kind ond degree, between the damage suffered by /. 

and the independent negligent conduct of A. and B. will 

make it proper to say that Z. was injured by the negh- 

gence of A. alone, or of B. alone, or of both A. and B. 

But if this last conclusion be arrived at, it is now quite 

clear that Z. can sue both A. and B. (fc). 

Th. In a cose now overruled, a different doctrine wa« set 

iS^fof up which, although never willingly received and seldom 
FB"";',*- acted on, remained of more or less authority for nearly 
forty years. The supposed rule was that if A. is travelling 
in a vehicle, whether carriage or ship, which belongs to B 
and is under the control of B.'s servants, and A. is mjuro.i 
in a collision with another vehicle belonging to Z., and 
under the control of Z.'s servants, which collision is caused 
partly by the negligence of B.'s servants and partly by that 
of Z '8 servants, A. cannot recover against Z. The pas- 
senger, it was said, must be considered as having m somo 
sense '■ identified liimseU " with the vehicle in which he ha., 
chosen to travel, so that for the purpose of complaming ol 
any outsider's negligence he is not in any better 
than the person who has the actual control {I). It is vcr} 

(i) See «4 U. S. at p. «*. 

(i) Lillte V. Ilaekctt (1886) 
116 U. S. 366; Uilli v. Arm- 
ilrong (1888) 13 App. C. 1, 
oseiinling Thmogood ». Bryan 

(1849) 8 C. D. 115, 18 L. J. 
C. P. 336. 

(0 Judgments in Thorotjoi'd v. 

Bryatt, Bee 12 P- D- »' PP' "*" 
67, 13 App. Ca. at pp. 6, 7, 17. 


Iiiro intonds or «vn^f ? i P«»senger carried for 

person i„ ehlrlo 1 L ' hI "T"'.," "''"™' ""• 
"ndl„-„.perio,.„„,„.,,„t,;; J ;«-^;";hp-on 
sliould exclude a concurrent r;„lT '■ ^ ^"^ "»'" 

who have aW been nc^ SoT" "1 """ "'''""^ 

nnalysis of the mmimnt,, • """f*"- The strict 
•"-hiefb^ th! exercise ofZCCr T'-f^' ""^ 

-al>.ia to findTt irHe'ri:" T' '"' ^^^ 
of course within the limits set bv the " r"""'- 
toremotenessof da™age-t03 a^ort '^r 'T " 
persons. It is „„ concern of his wleTer there "° f "' 
of contribntion or indemnitv J™"* "'^'■'' '« ""J' duty 
though in any ease he nC '^'^ "'"^ P""™'- 

-e than bis'X.o L^:;;" ^"^ ^^^''™' - "- -''<"« 
The phrase "contributory negligent of a third 

(»>) Coltman, Manle, 

Cresswell, and E. V. 

I I 2 

Williams JJ. 






harmed Anarew . ii i= , ., . ,„>• »„ the harm, 


'" It'r im;;>s.ible to lay down rules for determining 
rrS/one^tL:; There is no reason, however, 

P t'r mS crl a state o£ things gWing an opportan.y 
Itlother wrongful or negligent act ȣ John, as .11 - 

114, 122, 133, 80 L. J. K. ". 


(o) Wrongful acta of •trangers, 
.Mhai throwing .tones at train., 
may, if they are in fact oonunon, 
be reckoned a. accident. ar...ns 
out of CBployment under the 

Worlinien'. CompenMtion Act; 

CMli. y. X. * S. W. B. Co. 

[1906] 2 K. B. 151, ^i L •> 

K. B. 569, C. A. 

(nl See now Snyfiiattfc-S"- 

r2ui Co. [1897] 1 «■ B- "«• 

p 46 and the discu»ilon in tne 
differing opinion, (though the 
Court wa. unanimou. in the deoi- 
rion, which turned on the Work- 
men's Compensation Act) ot 
Vaughan Wi'.r.m. and Kennedy 
L. JJ. in Con, i Son v. Fr.««. 
?««,«* ♦ Co. [i»iU 1 K- =• 

ireouoENCK or third pemon. 

rr'""" '" '"''^''""'- ^- '«'™» ">« flaplf a collar in 

S it !ow ^"^'''^'"'--8. » PVing with the flap, 
^•IP;- in the litter B. is liable to P • K.,f v 

2-d >n a public plaoe being meddled with bv sone 

--notion in a^^d^t. I":: t:^:r:;jzr 

ZZ^^ ^ """■' ^"^ """""ff "> ^''"w whether 

purpose (r). Again a man whose business it is 
1^0 d.reet.ons may give them without duo c^e Ld 

, . , .t^ in oiutody 

of adult. 


(?) Aajuming that he i, 
t;ap«ble of discretion. See Z«„M 
;• *«'■''■■'• (1841) 1 Q. B. 29, 10 
j;- J. Ci. B. 73, «5 B. B. 191: 
too*« V. Midland O. W R 
£1909] A. C. 229. 78 L.' J.' 

(?) JiTxjAf. V. J/acAe (1863) 2 
H.tC. 744, 33 L.J. E,. 177- 
Md ,ee CTwi ,. «,„j.,.; 
(W8) 8 Q. B. D. .t pp. ,30- 
M6, p. 50, above; Dixon y. BiU, 

5 M. J; s. 198, 17 R. R. „, 
P- 510, below, and distinguish 
■WcDowall V, G. W R Co 
[1903] 2 K. B. 331, 72 L. j' 
K. B. 652, where the O. A. held 
that there was no evidence of 
negligence in the first instance. 

(>•) Clark V. Chamber, Ia,t 

(») Cwy 5; San; cute, note (») 





of taking ordinary cro of him«lf). but i" "'" «'»"^> .f^ 
M. an fdult, and one or both of then .uffor harn. und 
ei„um.tanoe. tending to provo negbg^noo "nJ^^V^^f 
Z and aUo contributory negligence on the part of M , {„ 
,Zwm not be liable to A. if M.» negligent, alone «u, , ho 

p^Iimate cause of the mischief. Therefore if M. could 
by ,uch reasonable diligence a, i» commonly expccU-do 
pLon. having the caro of young children, have av^oj d 
the consequences of Z.'s negligence, A. is not en .tied t, 
Z> r and this not because U.s negligence is impuU.l 
;; fiction of Uw to A., who by 'ho hypothcs. « 
Jcapabk of either diligent, or negligence, but because h 
needful foundation of liability is wanting, namely, tlm 
,Z a negUgence, and not something else for Z. is not 
|„bk. and which Z. had no reason to anticipate, 
should be the proximate cause. 

Child™.. Now take the ease of a child not old -7'' 217- 
iai. ordinary oare for its own safety, which by th car^* 
ness of the person in charge of ,t . '^-•^'"f" J^ 
in a place where it is exposed to danger. If the ch d 
comes to harm, does the antecedent negligence of U 

nstodia. make any difference to the legal rc«ult^ 
principle surely not, unless a ca«e can be conceived n 

which that negligence is the proximate cause Jh 
iSndanfs duty' can be measured by his notice et 

risk and his means of avoiding it; there is no reason 

making it vary with f diligence or negligence of a U 
Urson in giving oeca...n for the risk to «-'■ 

defendant is so negligent that an adult in the pk.nt.lU 

(0 ITailtJ-JLJ! -S- P"- 
(1850) r.«. Ch. B. B. H E. 719, 
728, 27 L. J. <J. B. 417, 28 
L. 3. Q. B. 258, U3 R. R- 850, 

855. Thi. i-asp » e«li"-'l.v 
left untouched by MOlt v. Arm- 
.trmg, 13 Avp. Ca. 1 <»" =' 
pp. 10, 19), 57 L. J. V. f.5. 


til ; . r"". ""' *'"■ ''"''■""^- -^'''S™"' ''"vo know, 
and ha, u»od .uch diligo.,™ a, would be sufficient tow ^ 

uch additional caution a, l.o roa,onablv could: or if 
the facta wcro Huch that no additional oiution wa. 
pract^blc, „„d there i» no evidence of „egligonc» 
No Enjli,,, d,^i^i„„ ^^ ^^ ^^^^ ^.^^^ ^^^^^ ^^^ 

igth of depriving „ child of redro,,, on the ground that 
third person negligently allowed it to go alone («) In 
America there have been such d<.isio„s in Ma-'ichu- 
«t te W, J,ew \ork, and elsewhere: but th, better opinion 
« to the contrary (a), and it i, submitted that both on 
prmciplo and according to the latest authoritv of th,. 
highest tribunals in both countries ihev are right (a«1 


(") This might happen in 
rarious ways, by remon ol liorli- 
ncsa or otherwiao. 

(I) Singleton v. S. c. Jl Co 
(1859) 7 C. B. .V. S. 287, 121 
It. R. 490, i« a caso of this Had, 
»« It waj decided mil on the fic- 
tion of impuliast a third pcrmn's 
neftJigenco to a child, but on the 
ground (whether rightly talien or 
not) that there was no evidence 
of nejf licence at all. 

(?) ilaugan v. Altrrtan (1866) 
I- It. 1 Ex. 239, 35 L. J. Ei 
WI. come, near it. But thai cam 
went partly on the ground of the 
4>mage being too remote, and 

since finli v. Vhmuber, (1878) 
3 Q. fl. D. 327, 47 L. J. y. B. 
427, mi„„, p. 50, it ;, „f jo„b(- 
ful authority. For our own pari 
wo think it i, not law. Cp. Mr. 
CampbcU'R note to lllxon v. Hell 
17B. B. 308. 

(s) Holme., The Common Uw. 

(») Burdicic on Torbi, 443, and 
«ee Jer. Smith, 2 Sel. Cn. on 
Torts, 212; Wigmorc, 2 Scl. Ca. 
on Torts, 107. 

(an) Cp. root,. 1. M. V. W . R. 
of IreiantI | 1909 J A. C. 229, 78 
L. J. P. C. 76, though not ex- 
prosaly dealing with thii point. 



CUM r. 

rule of 



In one peculiar ca«(6) the now exploded doctrine of 
"identification ■•(<•) wo. brought in, gratuitously a. it 
would «om. The plaintiff wa. a platelayer working on 
a railway; the railway company wa. by .tatute bound to 
niaintain a fence to prevent aniraaU(<l) from straying 
oft- the adjoining land; the defendant wa« an adjacent 
owBcr who kept pigs. The fenco was insufficient to kcq. 
out pigs (c). Some pigs of the defendant . found tho.r 
way on to the line, it did not appear how, and upset a 
trolly worked by hand on which the plaintiff and otU..r, 
wore riding back from their work. The plaintiff sea,,- 
appear, to be bad on one pr both of two grounds; then 
was no proof of actual negligence on the defendants 
part, and even if his common-law duty to fence w™ not 
altogether superseded, as regards that boundary, by th,. 
Act casting the duty on the railway company, ho wa.s 
entitled to assume that the company would perform the.,- 
duty and also the damage was too remote (/). But ilv 
ground actually taken was "that the servant can bo m 
no better position than the master when he is using tb« 
master's property for the master's purposes," or the 
plaintiff is identified with the land which he was ^^^m'^ 
for hU own convenience." This ground would now do ulv 
be untenable. 

The common law rule of contributory negligent, is 
unknown to the maritime kw administered in courts ot 
Admiralty jmrisdiction. Under a rough working rue 
commonly called judkium rusticum, and apparctlv 

almost a oaricalace of the pon.'nil 
idoo of the " roasonablo mail. 
It was alleged, but not fmmo 
as a fact, that the defendant Imil 
previously hcon warned by »«»■• 
one of hi" r't' '>"'''- "" "'" ''"'■ 
(/) Note l>y the late Mr. Jus- 
tice Cave in Addison on Tort«, 
Stk ed. 27. 

(S) CkUd V. Beirti (1874) L. 
R, 9 Bi. 176, 43 L. J. Ex. 100. 

(c) P. 482, above. 

(d) "Cattle," held by the 
Court to include pigs. 

(.) That is, liiljs ol ovoraifo 
vigour and obstinacy; see per 
Bramwell B., whoso judgment 
(L. B. 9 Ei. pp. 181, 182) U 


<ieriv«| from early medieval code, or custom,, with none 
<.f * however, it coincide, in iu modern »ppli«. 
•.on (!j) the los, wo, o,,ually divided in c«,o, of collision 
where both ship, are found to have been in fault The 
more ancient rule applied only where thcmwa, no fault in 
«.thor .h,p, „, adopted in England, it .c^ms „.oro tha« 
doubtful whether the rule made any distinction, until 
qu. e late ,n the eighteenth century, between case, of 
nogligenco and of pure acei.lont (A). However that mav 
be It dates from a time when any more refined working 
out of principles was impossible (f). As a rule of thumb 
which frankly renounced the pretence of being anything 
more, It was long found tolerable by the majoritv of 
those whom i. eonn-rned (A), although, as Jlr. XIa,sden'„ 
rcearehes have shown, for about a century it has bcon 
applied for a wholly different purpose from that for which 
It was introduced in the older maritime law, and in a 

7«7f fn 1"™' "^"^ °* "^- ^y 'he Judicature Act, 
187J(;), the p,dkw,n rmtU;,m was expresslv preserved 
m the Admiralty Division. The Maritime 6onventions 
Act 9 1, has now substituted a new rule of apportion- 


(y) Marsilen on CoUUiom at 
ixi, ch. 6 (6th cd. 117 ,q,.), and 
sec an article by the name writer 
in L- Q. B. ii. 357. 

(*) Op. cit. 139. 

(0 Writers on maritime law 
•tate the rule of the common law 
to be that when both ship, are in 
fault neither can recover nny- 
•k'ny. This may have been prac- 
tically so in tho earlier part of 
lie nineteenth century, but it is 
neither a complete nor a correct 
rer,ion of the law laid down in 
Ti'ff V. Warman (1858) 6 C. B 
V 8. 57.?, 27 L. .T. c. r 
». 116 K. B. 771. M 
long ago as 1838 it was dis- 
tacUy pointed out that " there 

may have been negligence in both 
parties, and yet the plaintiff may 
be entitled to recover: " Parke B. 
in iVirfy, V. {Jrnnd Junction It 
Co.. 3 it. 4 \V. 214, 248, 49 E 
B. 590, 593. 

(*) See, however, Mr. Leslie 
F. Scott's article on this subject 
'n L. Q. IJ. liii, 17. 

('; 8. 25, Bub-s. 9. Sec .Mars- 
den, p. 122, 6th cd., and sou fur- 
ther as to the .Vdmirally rule, 
Thf DrumlanritjrmUX.Q ig 
80 I,. J. P. 9. 

<«) But the rule of equal divi- 
Mun will remain whore it is not 
possible to establish different 
Af^teei of fault. 






IV -Avxili«ry mles and Presumptiom. 

alternatives or oppo dimcultios oecur 

by the conduct of the other. »«eu _ t„ ,1,,. 

loBtlv in questions of contributory negligence. In th 
Ct pV.e,\ .ho by another's want of ere fin » 
Mmsc'lf in a position of innninent danger ea^ U 
held guilty of negligent merely h<.causo m that c mo, 
Teney he does not act in the l^t way to avoid th 
Sr. That which appears the best way to a cu. 
e^Ling the matter afterwaxds at leisure and with ful 
knowledge is not necessarily obvious even to a pruden 
JskiUul man on a sudden alarm, ^tdl^ss can t 
party whose fault brought "» »'- "^^'^ ^^ ' J, 
compbin of the others error of judgment. This ru 
hlbeen chiefiy applied in maritime ^, whe« ajn 
pUced in peril by another's improper "-S-^» ^^ 
L Last moment taken a -- --jtholtV,,. 
authority for it eUewhere. A person w 
sates of a level railway crossing open, an4 is theiob^ 
r^d into thinking the line safe ^^ ««-; 
hound to minute circumspection, and if he is lun o^ 
hy a train the company may be liable l"m altl^ou 
••l did not use his faculties so clearly ^ h m> 
lave done under other circumstances («). L>ie si. 
lot bo heU too strictly for a hasty attempt to avc. a 

(m) The Biin-ell Cattle (187») 
4 P Div 219; r»« Taimimia 
,1890) 15 App.C;.. 223, 226, per 
Lord IlerjchoU; and ice other 
eiamplw collected in M«rrfen o» 

(„) AT. E. B. Co. V. W««"-- 
(187« L. B. 7 H. L. at P- !«• 
cp. SMUry; M. (1878) 3 .ipp. 
Ca. at p. 11«». 



suddenly impending danger, oven though his effort is 
ill-judged" (o). 

One might generalize the rule in some such form us No duty t.. 
this: not only a man cannot with impunity harm others Segulren'^ 
by his negligence, but his negligence cannot put them in "'''""'■»■ 
a worse position with regard to the estimation of default. 
You shall not drive a man into a situation ivhere there 
is loss or risk every way, and then say that he suffered 
by his own imprudence. Neither shall you complain thai 
he did not foresee and provide against your negligence. 
iWe are entitled to count on the ordinary prudence of our 
'fellow-men until we have specific m arning to the contrary . 
The driver of a carriage assumes iiiat other vehicles will 
observe the ruk of the road, the master of a v ssol that 
other ships w'U obey the stntutory and other ruli's of 
navigation, and the like. And generally no man is bound 
(either for the establishment of his own claims, or to avoid 
claims of third peraons against him) to use special pre- 
caution against merely possible want of care or skill on 
the part of other persons who are not his servants or under 
his authority or control (p) . 

It is not, as a matter of law, negligent in a passenger 
on a railway to put his hand on the door or the window- 
rod, though it might occur to a very prudent man to try 
first whether it was properly fastened; for it is the coni- 
pnny's business to have the door properly fastened (g] . 

Co) Brifffft V. Union Street ]tij. 
(1888) 148 Mn»8. 72, 76. 

ip) Sec Daniel v. Metrop. R. 
Co. (1871) L. R. 6 H. L. 45, 40 
L. J. 0. P. 121. 

f?) Gee V. Metrop. R. Co. 
(1873) El. Ch. L. H. 8 Q. B. 
161, « L. J. Q. B. 105. Th^ro 
waa Bome difference of opinion 

how far the question of contribu- 
tory ne^lif<cnco in fact was fit to 
be put to the jury. That the 
fact of a door in a train in 
motion being left open is evi- 
dence of negligence, nee Tool v. 
North Brilith By. [190«| A. C. 
•1.12, 77 I.. -T. P. V. !!!!. 



choice of 




another' M 


■ .nahirk- 


On the other hand if something goes wrong whieh does 
not eanso any pressing danger or inconvenienee aiidthe 
passenger comes to harm in endeavouring to set it nght 
himself, he cannot hold the company liable (r) . 

We have a somewhat different case when a person, 
having an apparent dilemma of evils or risks put betor,. 
him by another's default, makes an active choice between 
them. The principle applied is not dissimilar; it is not 
necessary and of itself contributory negligence to do 
~ng which, apart from the state of things due to 
the defendant's negligence, would be imprudent. 

The earUest case where this point is '^^^^^^flf 
and treated by a fuU Court is Clayards - ^f f /.^ 
The plaintiff was a cab-owner. The defendants for th„ 
pnrpL of making a drain, had opened a trench along 
L passage which afforded the only outlet from he 
stables occupied by the plaintiff to the Btr«>t. fho 
opening was not fenced, and the earth and grave 
eLavaU.d from the trench were thrown up in a ba.k 
on that side of it where the free space was w.dar, thus 
ncreosing the obstruction. In this state of things o 
pUintiff attempted to get two of his horses out of the 

(r) ThU is the principle np- 
pliod in Adami r. L. i T- X. Co. 
(1889) L. R. 4 C. P. 739, 88 
L. J. C. P. 277, though (it 
seemO not rightly in the par- 
ticuUr cem; <ee ii> <?" '• 
Metrop. K. C,,., L. K. 8 Q. B. »t 

pp. 161, 173, 176. 

(.) 12 Q. B. 439, 76 R. B- 305 

(1848). The rule wm laid down 

by Lord Ellonborough at nisi 

pri.j. u earlT as 1816; Jo— ». 

So,.., 1 Start. 493, 18 H- B- 

812, riteu by Montague Smith J-, 
L. R. 4 C. P. at p. 743. Tl.. 
plaintig was an oulaido pMscnB" 
on a coach, and jumped off t» 
avoid what jeomed an imminmt 
upset; the coach was, however, 
not upret. It was left to Ih. 
jury whether liy the defendant, 
fault he ■' was placed in «uch s 
situation as to render what he 
did a prudent precaution tor the 
purpose of ,elf-preservatior," 


mews. One he succeeded in leading out over the gravel, 
by the advice of one of the defendants then present. 
With the other he failed, the rubbish giving way and 
letting the horse down into the trench. Neither defen- 
dant was present at that time(<). The jury were 
directed "that it could not bo the plaintiff's duty to 
refrain altogether from coming out of the mows merely 
because the defendants had made the passage in some 
degree dangerous: that the defendants were not entitled 
to keep the ocnipiers of the mows in a state of siege till 
the passage was declared safe, first creating a nuisanoo 
»nd then excusing themselves by giving notice that there 
«as some danger: though if the plaintiff had persisted 
in running upon a great and obvious danger, his action 
Icould not be maintained." This direction was approved. 
Whether the pUintiff had suffered by the defendants' 
negligence, or by his own rash action, was a ma«.er of 
fact and of degree propeily left to the jury: "the whole 
question was whether the danger was so obvious that 
the plaintiff could not with common prudence make the 
attempt." The decision has been adversely criticised by 
Lord Bramwell, but principle and authority seem on the 
whole to support it (m) . 

Om or two of the railway cases grouped for practical 
purposes under the catch-word "invitation to alight" 
have been decided, in part at least, on the principle that, 
where a passenger is under reasonable apprehension that 
if he does not alight at the place where he is (though an 
unsafe or unfit one) he will not have time to alight at 



(() Evldonco waa given bj the (u) See Appendix B. to Smith 

detendenls, bnt «pparently not on Negligence, 2nd ed. I agree 

believed by the jury, that their with Mr. Smith's obiervatioM ad 

men expreiily warned the plain- fin., p. 278. 
tiff against the course he took. 



uf New 


aU he may bo justified in taking the risk of alighting 
Isbest I can a that place (x); notwithstandmg that he 
IghrbydocliningtJriskandlettinghimself be earned 

::t th'e next station, have entitW himself .. r«ov„ 
damages for the loss of time and resultmg expense (j,) . 

There has been a line of cases of this oto in the State 
of New York, where a view is taken les, favourab^ to the 
pjntia than the rule of Clayard. v. Detfticfc. H a tram 
£ tTstop, and only slackens spe«i, at a sUt.on where 
t Ld'to stop, and a passenger alights from .t w .k 
in motion at the invitation of fhe company s sen ants (. 
the matter is for the ju^y; so if ' '-» ^^ « 
.reasonabh, time for P^-^S^"" .'° !'''"'''• ;;'/", 
while one >s aUghUng(a). .t . held that J 
oassonger aUghts at his own rUk. I£ he wa^ts to hold 
thHompany liable he must go on to the next stat.on a„.i 
sue for the resulting damago.(b) . 

On the other hand, where the defendant's negUgonc.^ 
Ihas put the plaintiff in a situation of imminent perd the 
fcntiff may hold the defendant liable for the natural 
tnsequen Jof action taken on the first aUm. though 
Ich action may turn out to have been -neocssoxy .^ 
,It is also held that the running of even an obv.ous an 
treat risk in order to save human lite may be justified, a, 

{») Roh,or, 1. y. e. It. Co. 
(1876-6) L.B. 10 Q.B. 271, 274, 

44 L. J. Q. B. 112 (in C. A. 2 
D B Div. 85, 46 L. J. Q- D. 

SO) : ii».. v.ff.B. if- fo. (1876) 
2 Ex. Div. 218, 48 L. J. Ex. 374. 
(J,) Contra BrarawoU L. J. in 
r.oi V. Corporation of Darlington 
,1879) 5 Ex. D. at p. 35; but 
the last mentioned owe" had not 
been cited. 

(j) Viler T. iV. y. Cmtriil It. 
S. Co. (1872) 49 N. Y. 47. 
■ (») 63 N. Y. at p. 859. 

(6) Burrowi V. Erie E. to. 
(1876) 68 N. Y. 556. 

(0) Coulter v. Exprtss '»• 
(1874) 66 N. Y. 686; T,o,ml'l 
V. Central Park B.B. Co. ■M'*') 
69 N. Y. 168. Cp. }o„e. s 
Jjojce (1816) 1 Stark. 49J, 1« 

E. B. ai2. 


CHOICE OP BI8K8. 49.-) 

^against those by whose default that life is put in peril (d). 
And this seems just, for a contrary doctrine would Imvo 
the effect of ranking it safer for the wrong-doer to create 
a great risk than a smaU one. Or we may put it thus; 
tliat the hiw docs not think so meanly of mankind a-s to 
hold it otherwise than a natural and probable consequence 
of a helpless person being put in danger that some able- 
bodied person should expose himself to the same danger 
to effect a rescue. 

American jurisprudence is exceedingly rich in iUustra- Sep.™- 
tions of tho questions discussed in this chapter, and '^ifJZ 
American cases are constantly, and sometimes very F'-'f* 
freely, cited and even judicially reviewed (e) in our courts. 
It may therefore bo useful to eaU attention to tho peculiar 
turn given by legislation in many of the States to the 
treatment of points of " mixed law and fact." I refer to 
those States where the judge is forbidden by statute (in 
some cases by the constitution of the State)' (/) to charge 
the jury as to matter of fact. Under such a rule the becomes a categorical enumeration of all 
tlie specific inferences of fact which it is open to tho jury 
to find, and which in the opinion of the Court would have 
different legal consequences, together with a statement 
of those kgal consequences as leading to a verdict for the 
plaintiff or the defendant. And it is tho habit of counsel 
to frame elaborate statements of the propositions of law 

(d) Eckert y. Long ttland R. 
a. Co. (1871) 43 N. y. 502, 3 
.\m. Hep. 721 (action by reppe- 
ientative of a man killed in 
uolling a cliild ofl the railway 
tracli in front ot a train wliich 
wa. lieing negligently driven). 

(») E.g. Lord EJier'a judg- 
ment in The Be^aiaa, 13 P. Kit. 

at pp. 77-82. Cp. per Lord 
Herscliell in MilU v. Aniulrong, 
13 App. Ca. at p. 10. Tiiore are 
dicta against citing American 
caaej, but tliey liave not been eon- 
siafently acted on. 

(/) Slimaon, American Statute 
Law, p. 132, § 605. 




for which they contend ae Umiting the admiMible findings 
of fact or as appUcable to the facts which may be found, 
and to tender them to the Court as the proper instruc- 
tions to be given to the jury. K»ce there is an amount 
of minute discussion beyond what we are accustomed to 
in this country, and it -s a matter of great impartanco, 
when an appeal is contemplated, to get as httle as 
possibU loft at large as matter of fact. Thus attempU 
L frequently made to persuade a Court to lay down as 
„,atter of law that particular aoU are or are not «>n- 
tributory negligence.(ff) ■ Probably the doctrme held m 
several States that the pUintiff has to prove, as a sort of 
preUminary issue, that h* was in the exercise of due 
care, has its origin in this practice. It is not necessary or 
proper for an English lawyer to criticize the convemenoo 
of a rigid sUitutory definition of the provinces of judge 
and jury. But English practitioners consulting the 
American reporte must bear iU prevaknoe m mind 
or they may find many things hardly inteUigible, and 
perhaps even suppose the substantive difietences between 
English and American opinion upon points of pure la« 
to be greater than they really are. 

(y) For a strong example see 
Kane 1. N. Central S. Co. (1888) 
128 U. S. 91. In Waihingtont 
ic. E. H. Co, V. McDade (1889) 

135 U. S. 654, 564, " ooansel tor 
the defendant asked the Court » 
grant twenty separate prayers 
for inattnotionB to the jury." 




In general, thoee who in person go about in undertaking e^. 
attended with nsk to their neighbours, or sot it in motion ''■■°^? 
by the hand of a servant, aro answerable for the conduct '-'i'""' 
of that undertaking with diligence proportioned to the '."ulr' 
apparent nsk. To this rule the policy of the law makes 
exceptions on both sides. As we have seen in the chapter 
of General Exceptions, men eso free to seek their own 
advantage in the ordinary pursuit of business or uses of 
property, though a probable or even intended result may 
be to diminish the profit or convenience of others We 
now have to consider the cases where a stricter duty ho^ 
been imposed. As a matter of history, such cases cannot 
easily be referred to any definite principle. But tho 
ground on which a rule of strict obligation has been 
maintamed and consolidated by modern authorities is 
the magnitude of tho danger, coupled with the difiiculty 
of proving negligence as the specific cause in the event 
el the danger having ripened into actual liarm The 
l«v might have been content with applying the general 
standard of reaaonabk care, in the sense that a reason- 
able man dealing with a dangerous thing-fire, flood- 
water, poison, deadly weapons, weights projecting or 
suspended over a thoroughfare, or whatsoever else it be 
will exercise a keener foresight and use more anxious 
precaution than if it were an object unlikely to cause 
harm, such as a faggot, or a loaf of bread. A prudent 
mau doos not handle a loaded gun or a sharp sword in 

P.— T. 

.' I 


1 fttteher. 


adopted in England ha, l^*" " J" 1 p„tcr to 

certain things arc a source "f -'';°'^T^ ^ , held, 
„an «ho exposes '''V^t °£ wlgtl, tl insare his 
although his act is not of itself J^^^'^t due to somn 
noighhour against any consequent harm not 
cause beyond human foresight and control. 


. applications of ^.-™C™ i^iX JseH.ted 

as late as 1868, by tne ioaui s rhambor deUvcicd 

where the judgment of the E«te<:a« Cha»ter ^^ 

by Blackburn J. ^as adopted in terms by the 
^'"■'*'' , V f , ;„ VUtcher v. Eijlande, and the 

shown by the judgment Itself (a): 

"Tt aBWars from the statement in the eaae that tho 

Mr WUto!, Blackburn, Kc.ting, 
Mdlor, Monttgue Sntfth, «d 

LoAJJ. For the .latements of 
fMt referred t», aee at pp. 26'" 


^efrndanto- knd and no mischief would have been don. 
to the pUintill, but for this latent defect in the defendant." 
.absoil And it further appear, that the defendant, 
elected competent engint*™ and contractors to make their 
roscrvoir, and themselves personally continued in total 
Ignorance of what we luive called the latent defect in the 
«ub8o,l; but that these persons employed bv them in 
the course of the work beeamo aware of the existcnci, of 
the ancient shaft, fille<l up with soil, though they did not 
know or suspect that they were shaft, communicating with 
old workings. 

"rt is found that the defendants personally were fr«. 
from all blame, but that in fact proper care and skill was 
not used by the persons ompkyed by them, to provide for 
he sufficiency of the ,«crvoir with roferonec to these 
shafts. The consequence was that the reservoir when filled 
«itb water burst into the shafts, the water llowod down 
through them into the old workings, and thence into the 
plaintiffs mine, and there did the mischief. 

"The plaintiff, though free from all blame on his part, 
must bear the loss unless he can ctablisl. that it was the 
oonscquence of some default for which the defendants are 
responsible. The que«tion of law therefor arises, what is 
he obligation which the law cast, on a person who, like 
the defendants, lawfully brings on his land something 
which though harmless whilst it remains there wm 
naturally do mischief if it escape out of hi, land' It is 

TT\"l t" ,'""''' "''' ""^ "■"'' '"'"' -- to keep in 
th^t which he has brought on the land and fcc«ps there, in 
rder that it may not escape and damage his neighbours; 
but the question arises whether the duty which the law 
casts upon him, under such circumstances, is an absolute 
duty to keep it in at his p..,;!, or is, as the majority of 

K K 2 




th. Court of E«hequer toe thought, merely a duty to, 
rrrlonaUel.. P™-t P'^ut.o™ ^ ord^^ - 
keep it in, but no more^ « '^^ «^'^ ^, , ^ ,hor« 
per.on who ha. '•""^^ ^^^^ k:*; it in, i7re.pon- 
.omething dangcrou,, and foiled Mcp 
.ible £or all the natural eon-e<luen«. ^f ^t, -pe^ ^ 
the «=cond be the U^.t f j>^^S„V;:^ueatly 
.„.„orabk except on proof of «^'K«""' ^^j „„^ u,e„t 
would not be ««.wcrable for e«*pe arming ftomy 

defect which ordinary prudenoe and .kill cou 
^r^e-think that the true ,uleoflaw^.that^on 

not do .0, i. Bdmi«a^«*'"^»^^^f^ XX 

of hi. neighbour', .pnvy, or whose naoiui 

I, Uhv by the fume, and noisome vapours of hs 
"twslli* works, is damniaed without .uiy fault 
!r£ ol lltleem, but reasonable and Just that the 

i. to be mi«>hievous if it gets on hi. neighbour. 


»houU be obliged to mako good the Qamago wbich ennuoi 
if ho doea not iucceed in confining it to his own prop"rty . 
But for his art in bringing it there, no mischief could havo 
oeerued, and it seems but just that ho should rit his peril 
keep it there so that no mischief may accrue, or answer 
for the natural and anticipated consequences. And upon 
authority, this wo think is rstublished to lie the law, 
whether the things so brought be beasts, or water, or filth, 
or stenches." 

Not only -wus this doiisiou aflirmed in the House of Aiiin«* 
Lords (6), but the reasons given for it were fuUy con- ahsT" 
firmed. " If u person brings or accumulates on his land 
anything which, if it should escape, may cause damage to 
his neighbours, he does 80 at his peril. If it does escape 
and cause damage, he is responsible, however coroful ho 
may havo been, and whatever precautions ho may have 
taken to prevent the damage " (c). It was not overlooked 
that a line had to be drawn between this rule and the 
general immunity given to landowners for acts done in the 
•'natural user " of their land, or " exercise of ordinary 
rights "— nn immunity which extends, as had already been 
settled by tho House of Lords itself (d), even to obviously 
probable consequences. Hero Lord Cairns pointed out 
that the defendants had for their own purposes made "a 
non-natural use " of their land, by collecting water " in 
quantities and in a manner not the result of any work or 
operation on or under tlie land." 

■ The detailed illustration of tlie rule in Rj/tands v, 
Fletcher, as governing the mutual claims and duties of 
adjacent landowners, belongs to the law of property rather 

(i) Rjflanda v. Fteleher (186ft) 
l. R. 3 H. L. 3S0, 87 L. J. Ex. 


W Laid Cnunrorth, at p. 8<0. 

(rf) Chatemore v. £ichard$ 
(1859) 7 H. L. C. 349, 29 L. .1. 
El. 81, 115 H. B. 187. 


than to the .abject of thi» work(e). W" 'h-" »tum 

di«u J in U,e judgment of ,ho Kxcl.e.,u.r U.mbor) 
for which a .imilar rule of .tviot r>.pon.b,Uty had been 
e.tabU.hed earlier. A. Uying down a rule of 
W, U.e decision in %/a»rf. v. F/.(.Aer .» not op..n U, 
orU ci.m in th,» country (/). «ut in the judRnu.n of tho 
, Exchequer Climber it«=lf the p-«.ibili.y " «-P^- ' 
.uggTtcd, and wo ,hall »«. that tho tendency of later 
' decMon. ha. been rather to oncoura«o th. d.,c«vcrj of 
e,«ption. than othcrwi.e. A ruL ca,t.n. the r.s,,<». - 
bility of an insurer on innocent persons is a hard rule, 
though it may be a jus. one, and it needs to be ma>n- 
Led on very strong evident ig) or on very ^kar p^u-ul, 
of policy. Now tl.c judgment in Fletcher ^ ■ HyUrnds (* . 
Lx^fuUy prepared a« it evidently was, hardly s«en>s o 
Tke such g^nds ch,ar enough for un.versal a^pt- 
ance The liability seems to be r«t«l only in part on 
the evidently lu.zardous character of the state of On^ 
artiflciaUy maintained by tho defendants on thexr land. 
In part the e«ie is assimilated to that of a nmsan«>(<. 

(i.) See rUtcher v. Sniil* 
(1877) 2 App. C«. 781, 47 L. J. 
Ex. 4; Htimrhria v. Vomim 
(1877) 2 C. P. D. 23B, 46 L. J. 
C F 438; Surdman v. tlorth 
EMtrn K. Co. (1878) 3 C. P. 
Di». 168, 47 L. J. C, P. 868; 
and for the di»tinotioii a» to 
" natural courno of uier," Waiou 
V. WaddM, H. L. (So.) 2 App. 
Ca. 95. The principle of XfUndi 
T. Fletcher wo« held applicable 
to an electric current diwharged 
into the earth in Xatrnml Tele- 
phone Co. .. Baker [1893] 2 Ch. 
186, 62 L. J. Ch. 699. 

(/) It is by no meanii genc- 
raUy accepted in America (»oo 

1 Wigmoro. »«lCa. 1013 J4?.). 
Tho Judicial Committee haa 
expressed an opinion that it 
ii con»iitcnt with Roman law, 
and tliat the rule ii ?»■* 
of the Koman-Uutch law of 
the Capo Colony: tiutenx a«d 
S. A. Telenraph Co. v. Cape 
Towtt Tramwat/* Co. [1902] .V. 
C. 381, 71 L. J. P- C. 122. >» 
Roman or modern civilian autho- 
rity IB jfiven. 

(y) See *«y. v. Comi""*'""' " 
„/«.«..« /or £..M(188S) no- 

B. Div. 661. 

(4) L. R. 1 Ex. 277 •«?. 

(•) See especially at pp. 2S5-6. 
But can an iaoUted accideut. 



unci ill part, aiao, ttimii ure appurdnt of tlio fdrDKrly 
prevalent theory that u nuui's vuluiituiy acts, even whou 
lawful and froo fruin iiogligoucu, aru prima facie done at 
his peril {k), a theory which modern authoritioa havo 
explicitly rejeeted in America, and do nut couutonanoo in 
Englmd, oxct'pt bo far as Rylandt v . Fletcher may itself 
be capable of being Usui for that purpoao(;}. Puttinn 
that question aside, one does not sec why tho policy of t! 
'law might not have been satisUed by requiring the d' i 
dont to insure diligence in proportion to tlio maniff tt >. ' 
(not merely the diligence of himself and his sorvais, buL 
the actual use of duo caro in the matter, whe+Kr l.v 
servants, contractors, or otiiersj, and throwing the bt'ili a 
of proof on him in coses where the matter is pcculiajly 
within his knowledge (m). This, indeed, is what the law 
has done as regards duties of safe repair, as wo shall 
presently see. Doubtless it is possible to consider Bf/landx 
V. Fletcher as having only fixed a special rule about 
adjacent landowners (n), but it was certainly intended to 
enunciate something much wider. 

Yet no case has been found, not being closely similar in uhimwtor 
its facts, or within some previously recognized category, "' ****' 

however mLicliievouH in ita ru- 
aulta, bo a nuiaancc? thougli its 
ronaequeni'03 may, as whero a 
branch lopped or blown down 
from a tree U left lyin^ aerowt a 
highway. So of i-ewagc carried 
on the plaintiff's land by Hood- 
water: Jonei V. Llaarwtt U. J). 
ruifiictl [1811 I I Cii. 393, 80 
L. J. Cli. 145. 

(<) L. B. 1 Ex. 28S-7, 3 II. 
L. 341. 

(0 Seo p. 147, above, .la to 
tbe cfftxt of iititutory inipa«ttiuu 

of an abaolute duty in creating a 
co-extensivo civil responaibi:lty, 
aee David v. Britannio Merthyr 
Colli Vo. [1909J 2 K. U, 146, 78 
L.J. K. B. 659, C. \. 

(<n) Mr. Balmond ("Law of 
Torta," pp. 205, 206) urines that 
Itylatult V. Flftr/iir doea not 
apply where there haa boon no 
nefftigcnco on the part of any 
one. I ahould be glad to think lo 
if I could. 

(n) Martin B., L. B. « Ex. at 
p. 223. 


in which the unqualified rule of liability without proof of 
negligence ha« been enforced. We have ca«» where 
damage, have been recovered for the loss o£ animals by 
the escape, it so it may be called, of poUonou, vegetation 
or other matters from a neighbours knd (o). Thus the 
owner of yew trees, whose branches project over h.s 
boundary, so that his neighbour's horse eats of them and 
is thereby poisoned, is hcU liable (p); and the same rule 
has been applied where a fence of wire rope was m bad 
repair, so that pieces of rusted iron wire fcU from .t mo 
a close adjoining that of the occupier, who was bound to 
maintain the fence, and were swallowed by cattle whicl. 
died thereof (g). In these cases, however it was not 
contended, nor was it possib